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SEYMOUR    DURST 


■NEW    VOKK   I  ,       1051 


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'V-^«^*---' 


HISTORY   OF  THE 
BENCH   AND   BAR  OF  NEW  YORK 


Digitized  by  the  Internet  Archive 
in  2013 


http://archive.org/details/historyofbenchba01mcad 


<^y^?7t^ 


jiisroijv  OF  riiK 

r,KNCn  AND  15AR  OF  NFW  YOlflv 


EDITED  BY 

HONORABLE  DAVID  McADAM,    HONORABLE  HENRY  BISCHOFF,    Jr.. 

RICHARD   H.    CLARKE,  LL.D.,    HONORABLE  JACKSON  O. 

DYKMAN,    HONORABLE  JOSHUA  M.    VAN   COTT, 

AND  HONORABLE  GEORGE  G.  REYNOLDS 


VOLUME    I 


NEW  YORK    HISTORY    COMPANY 

132  NASSAU  STREET 
1897 


TABL1-:   OF  CONTENTS 


VOLT' ME    I 

State  of  JruispuroENCE  durinc;  tiik  Ditch  Period,  1623-1674:. 

Jlononihle  C/ia/'le.s  P.  Dulij.        1 

English  Colonial  Polity  and  Jldiuial  Administration,  16«!-l-177<!. 

Amasa  A.  Jledfiehl.     35 

Jroici.vL    Organization   and   Legal   Administration    from    1776    to 

the  Constitution  of  1846    .     .     .     Ilononible  Charles  II.  Truax.     94 

Constitt'itonal  and   Pelated   Aspects,  from  1801  to   the   CoxsTiTr- 

tion  of  1894 BoheH  Ludlmc  Foioler.  123 

The  Constitution  of  1894 John  Baler.  169 

Legal  Edication  in   Xfw  York       ...    Ilenrij   VTunans  Jessup.    178 

The  Association  of  the  Par Wheeler  U.  PecUam.  191 

The  Library  of  the  Xew  York  Law  Institute. 

William  II.  ^yinier^.  21(» 

Personal  Peminiscences  of  Sixty  Years  at  the  Xew  York  Bar. 

Benjamin  D.  Sillmian,  226 

BlOGRArHICAL     -«.«,....,.., 244 


STATE  OF  JUlilsrilUDKNCE  DlKINCi  TlIK  1)1  TCIl 
FElUOl),  1(523-1(>7I. 


(^RTY  YEARS  ago,  I  -wrote  as  an  in- 
troduction to  the  first  volume  of  the 
reports  of  the  Court  of  Common  Pleas 
of  the  City  of  New  York,  of  which  I 
was  then  a  member,  a  history  of  the  Court,  which  was  the  oldest  in 
the  State,  having  been  established  by  the  Dutch  in  1653.  When  this 
introduction  was  written  little  was  known  respecting  our  early  judicial 
tribunals.  Our  first  historian,  Chief  Justice  Smith,  devoted  but  a  few 
I)ages  to  the  Dutch  period  and  had  nothing  to  communicate  respecting 
it,  but  the  founding  of  the  colony  by  the  Dutch,  the  encroachment 
upon  it  by  the  settlers  from  New  England  on  Long  Island,  and  the 
particulars  of  its  surrender  to  the  English  in  1664.  David  Graham,  in 
1834,  published  a  work  on  the  jurisdiction  of  our  courts,  in  which  he 
simply  copied  what  he  found  in  Smith,  and  went  so  far  as  to  assume 
that  there  was  nothing  remaining  to  show  what  courts  existed  among 
the  Dutch,  or  which  would  shed  any  light  upon  the  manner  in  which 


2  HISTORY    OF    THE   BENCH    AND    BAK    OF    KEAV    YORK 

justice  was  admiuistered  by  them.'  He  appears  to  have  relied  upon 
the  absence  of  any  information  in  Smith's  history  and  to  have  made 
no  investigation  himseK,  for,  on  the  contrary,  the  records,  in  the  Dutch 
language,  of  the  Court  that  existed  from  the  first  establishment  of  a 
regular  judicial  tribunal,  in  1653,  to  the  end  of  the  Dutch  period,  have 
always  remained  in  the  City  of  New  York.  In  1848,  Dr.  O'  Callaghan 
published  a  ' '  History  of  New  Netherland, ' '  the  name  by  which  New  York 
w^as  known  under  the  Dutch,  but  it  contained  little  respecting  the 
Courts.  The  first  volume  of  Brodhead's  history  of  the  State,  which 
appeared  in  185B,  contained  miich  more,  but  it  was  of  a  general  kind 
and  gave  little  or  no  information  as  to  the  nature  of  the  Courts,  the 
mode  of  proceeding,  or  the  way  in  Avhich  justice  was  administered. 

This  information  I  iindertook  to  sup^jly  in  the  introduction  referred 
to,  and  to  connect  with  it,  a  sketch,  at  least,  of  the  Judicial  tribunals 
from  the  commencement  of  the  English  period  to  tlie  adojDtion  of  the 
State  Constitution,  in  184G ;  a  task  then  of  labor  and  difficulty,  for 
the  colonial  documents,  copies  of  which  Mr.  Brodhead  had  brought  from 
Holland  and  from  England,  had  not  then  been  x^i'inted.  An  investi- 
gator at  the  present  day,  with  the  aid  of  Dr.  O' Callaghan' s  admirable 
index,  can  turn  at  once,  to  any  one  of  these  ten  bulky  volumes,  for 
w^hat  he  is  in  pursuit  of ;  but  I  had  to  go  over  the  whole  of  these 
documents  in  manuscript,  and  as  there  was  no  index,  to  read  them  from 
beginning  to  end,  to  discover  what  was  contained  in  them  relating  to 
my  enquiry,  and  in  re-reading  now,  for  the  puri)ose  of  revision  of  what 
I  then  wrote  respecting  the  Dutch  period,  it  is  gratifying  to  find  how 
little  there  is  to  amend  or  to  be  added. 

I  was  asked  by  the  editors  of  the  present  work  to  write  an  article 
for  it  on  the  Dutch  period.  To  write  an  index)eudent  article  would  be 
to  repeat  what  I  have  already  Avritten,  to  so  great  an  extent,  that  I 
thought  the  better  course,  after  a  lapse  of  forty  years,  would  be  to  revise 
what  I  had  jireviously  written,  as  more  acceptable  and  a  sufficient 
compliance  with  their  request ;  which  I  have  done  in  what  follows. 

CHARLES  P.  DALY. 
June  20,   1895. 

The  colony  of  New  Netherland  was  planted  by  the  West  India 
Comjiany,  a  commercial  cori)oration  of  Holland.  This  corporation  had 
obtained  from  the  States  General  an  exclusive  charter  or  j)atent,'  to 

1  Graham,  on  the  Jurisdiction  of  Courts  of  Law  and  Ulook,  just  returned  from  his  voyage  to  these  parts' 
Equity  in  the  State  of  New  York,  Ch.  3.  appeared  with  the  sliipowners  associated  witli  him  be- 

2  Tlie  charter  here  referred  to  was  granted  by  tlie  fore  tlie  States-General.  A  charter  was  at  once  drawn 
States-General  of  Holland  in  1(121,  to  the  Dutch  West  up  giving  these  persons,  "all  now  united  into  one  corn- 
India  Company.  That  shown  in  fac-simile  is  still  pany,"  the  right  to  traffic  in  the  recently  discovered 
earlier.  It  was  granted  ])y  the  Stat(!S-General  October  "new  lands  situated  in  America,  between  New  France 
11,  1G14,  and  is  the  first  official  document  in  which  the  and  Virginia  .  .  .  and  now  called  New  Nether- 
name  "  New  Netherland  "  appears.  In  March,  1614,  land."  A  fac-simile  of  this  charter  is  given  on  p.  3.  It 
the  States-General  publislied  a  decree  to  encourage  will  be  found  translated  in  Volume  i.  of  the  "Memorial 
expeditions  of  discovery  under  the  title  of  a  "General  History  of  New  York  "  and  Volume  i.  of  the  "Docu- 
Chartcr  f or  those  who  discover  New  Passages,  Ilavcim,  nu-nt.s  liclating  to  the  t'ulouial  History  of  New  York." 
Countries  or  Places."    October  11,   following,  A<lriaen  Kditok. 


iiisroitv  (I 


Ai;  <ii'   m:\\-    v<ii; 


'■<"""!  ••••lonirsMiid  ,,,ny  «.ri  ti;..|..,  n;i  viu.-.t  i,„,  :in.|   .•..i.iiur,-,-..  „,,o„   i|„. 
.•<.a.slN<.r  AlVir:,,   .\o,(  1,  A..,ni<M  aiul   ll...   Wrst    Ji„li..s;    j.nd,   lor    this 

^ii  >■,■»/■  /;>a^U  f  ^"-7/'  ■  ,;>  '^»  '^j  "-^  ^»V-7^e^A»'>  ^ 


HISTORY  OF   THE  BENCH   AND   BAR   OF   NEW   YORK 


-Cyt^^Jha'\~a.JSy>  \Uui»y  £-,H!-oJiiXf ^^f^&-^  aCfcnri-^  /Pf^J-ix^  .  l\^^  T^^a-f>n^  «u><V 

purpose,  was  invested  among  other  things,  with  the  most  comprehensive 
judicial  powers.'  It  was  exclusively  entrusted  with  the  administration 
of  justice  in  the  colonies  it  should  establish,  having  the  right  to  appoint 
governors,  officers  of  justice,  and  all  other  public  officers  ;  to  maintain 
order  and  police,  and  generally,  in  the  language  of  the  charter,  to  do 
all  that  the  service  of  those  countries  might  require." 

The  government  of  this  gigantic  corporation  was  vested  in  five  separate 
chambers,  to  one  of  which,  the  chamber  of  Amsterdam,  was  committed 
the  management  of  the  affairs  of  New  Netherland,  the  general  executive 
power  of  the  whole  body  being  entrusted  to  nineteen  delegates,  repre- 
senting conjointly  the  separate  chambers  and  the  States  General,  and 
which  was  known  Iby  the  appellation  of  the  College  of  Nineteen.  The 
colony  of  New  Netherland  was  formally  organized  by  May,  the  first 
director  or  governor  appointed  for  it  by  the  Amsterdam  chamber,  and 
a  settlement  was  established  at  Manhattan,  the  present  site  of  the  City 
of  New  York,  in  1623.  May's  administration  lasted  but  a  year,  and 
whether  during  this  brief  i)eriod,  or  in  that  of  his  successor,  Yerhulst, 
whose  rule  was  equally  short,  anj^  provision  was  made  for  the  adminis- 
tration of  justice,  there  is  now  no  means  of  determining.  Tlie  number 
of  th(^  colonists,  liowever,  was  so  small,  and  they  were  so  fully  occupied 

'  ISrodheiicI,  131.     O'Call.  ISl.  ■•'  OTallaghjin,  App.  100;  Charter,  art.  S. 


ill  i)rovi(liii^-  Un-  (lirir  iiniiu'dintf  wniils,  lliat  lli.'iv  cuiild  Ix'  lilllr,  if 
any,  occasion  for  or^iiiiiziii^  a  judicial  liibuiial.  In  ]<>-'<),  Miniiil  «:iiii.- 
out  as  governor.  IIo  had,  to  assist  liini,  a  council  of  live,  who,  with 
himself,  were  invested  with  all  legislative,  execuliv(>  and  judicial  i)owers, 
subject  to  the  supervision  and  appellate^  jurisdiction  of  the  chaniher  at 


CITY  HALL,  AMSTERDAM,  PRIOR  TO  1615 


Amsterdam.'  There  Avas  also  attached  to  this  body  an  officer,  well 
known  in  Holland  by  the  title  of  the  Sellout  Fiscal.  He  was  a  kind  of 
attorney  general,  uniting  with  the  power  of  a  jjrosecuting  officer  the 


Brodhead,  1B2.    This  ( 


lad  crimiual  jurisdictiou  to  the  extent  of  flue,  &c. 


HISTOllY   OF   THE   BENCH   A>fD   BAH   OF   XEW   TORK 


THE"HALF.MOON.» 


executive  duties  of  a  slieriflf ;  a 
more  particular  enumeration  of 
whose  duties,  from  tlie  careful 
compilation  of  Dr.  O' Callaghan, 
will  be  found  in  a  note. ' 

To  the  governor,  his  coun- 
cil, and  the  schout  fiscal,  the 
administration  of  justice  was 
left  during  the  six  years  that 
Minuit  was  governor,  and  the 
four  years  of  his  successor,  Van 
Twiller,  that  is,  from  1626  to 

1637.    In  what  manner  judicial  proceedings  were  conducted  is  unknown. 

Records  were  kejit  under  Van  Twiller,  but  they  are  now  irretrievably 

lost."      His   schout   fiscal, 

however,    Lubbertus    Van 

Dinclage,  was  a  doctor  of 

laws,  and  a  man  of  ability; 

and   as   long    as    he   con- 
tinued to  act,  it  may  fairly 

be     presumed  ■   that     the 

management     of    judicial 

matters     was    under     his 

charge.     In  1630,  extensive 

grants    of   lands   in   New 

Netherland  were  made  by 

'  He  was  charged  specially  with  enforcing  and  mam 
taining  tlio  placards,  ordinances,  resolutions  and  military 
regulations  of  the^high  mightinesses,  the  States  General, 
and  protecting  the  rights,  domains  and  jurisdiction  of 
the  company,  and  executing  the  orders  as  well  in  as  out 
of  court,  without  favor  or  respect  to  individuals;  he  was 
hound  to  superintend  all  prosecutions  and  suits,  hut 
could  not  undertake  any  actions  on  behalf  of  the  com- 
pany, except  by  order  of  the  council,  nor  arraign  nor 
arrest  any  person  upon  a  criminal  charge,  unless  upon 
information  previously  received,  or  unless  he  caught  him 
in  flagrante  ddictu.  In  taking  information,  he  was 
hound  to  note  as  well  those  points  which  made  for  the 
persons  ag  those  which  supported  the  charge  against  him, 
and  after  trial,  he  was  to  see  to  the  faithful  and  proper 
execution  of  the  sentence,  pronounced  by  the  judges, 
who,  in  indictments  carrying  with  them  loss  of  life  and 
property,  were  not  to  he  less  than  live  in  number.  He 
was,  moreover,  specially  obliged  to  attend  to  the  com- 
missions arriving  from  the  company's  outposts,  and  to 
vessels  arriving  from  or  leaving  for  Holland,  to  inspect 
their  papers,  and  superintend  the  loading  and  discharg- 
ing of  the  cargoes,  so  that  smuggling  might  be  prevented ; 
and  all  goods  introduced,  except  in  accordance  to  the 
company's  regulations,  were  at  once  to  be  confiscated. 
ne  «  as  to  transmit  to  the  directors  of  Holland,  copies  of 
all  information  taken  by  him,  as  well  as  of  all  sentences 
pronounced  by  the  court,  and  no  person  was  to  be  kept 
long  in  prison,  at  the  expense  of  the  company,  without 
special  cause,  but  all  were  to  be  prosecuted  as  expedi- 
tiously as  possible  before  the  director  and  council.     .     . 


He  w  as  strictly  forbi  kkn  to  accept  presents  or  gifts  from 
any  person  what'.oever  and  had  to  contmt  him^tlf  with 
the  civil  fines  and  penalties  adjudged  to  him,  and  such 
part  of  the  criminal  fines  and  confiscated  wages  of  the 
company's  servants  as  the  director  and  council,  after 
prosecution,  might  allow.  He  was  not  to  ha\e  any  part, 
however,  of  captured  prizes  or  confiscated  goods. 

"^  Mr.  Brodhead  informed  the  writer  that  when,  in 
pursuance  of  an  act  of  the  Legislature,  he  was  sent  to 
Holland  in  1841,  to  collect  information  respecting  our 
early  colonial  history,  he  found  that  the  voluminous 
archives  of  the  Dutch  West  India  Company  had  been 
sold  but  a  few  years  before  his  arrival,  as  waste  paper. 
Had  the  legislature  acted  upon  the  suggestion  of 
Governor  Clinton,  in  1810,  the  records  of  this  company, 
covering  the  whole  period  of  the  Dutch  dynasty,  and 
including  all  the  private  correspondence  between  the 
directors  in  Amsterdam  and  their  agents  in  New  Nether- 
land, would,  ujion  request,  have  been  willingly  presented 
to  the  State,  by  the  Dutch  government.  The  sale  had 
been  so  recent,  that  Mr.  B.  was  enabled  to  discover  some 
of  the  purchasers;  but  he  found  in  the  process  of  sale 
and  resale,  that  the  papers  had  passed  into  the  hands  of 
innumerable  small  dealers  in  the  Dutch  metropolis,  and 
had  been  used  as  wrappers  for  merchandise,  and  tliat  the 
great  bulk  of  them  had  been  scattered  and  appropriated 
to  similar  uses,  along  both  banks  of  the  Rhine.  In  the 
indefatigable  search  which  he  instituted,  he  was  enabled 
to  rescue  some  fragments,  but  the  amount  obtained  was 
very  trifiing. 


Ilic  Wfst  liidiii  (lompiiiiy,  to  ccrlaiti  patiooiis,  who  wcnMiivcsicd  uitli 
tlie  feudal  i)rivil('i,n'.s  of  iiianoiiul  lords.  Tlicy  wcro  aulli()riz('<l  to 
erect  coui-ts  of  justice,  and  (courts  kiiowu  as  the  patroons'  couils  were 
uccoi'diii^ly  established,  ex(U-cisiii<;  iiidiiiiited  civil  and  criminal  juiis- 
dictioii  within  the  patroons'  territory.  In  these  tribunals  the  pat roon 
presided  in  jierson  or  by  deputy.  lie  was  clothed  with  the  i)ower  of 
life  and  death,  and  could  decide  all  civil  suits  arising  within  his 
jurisdiction,  subject. — whei'e  he  rendei-ed  judgment  for  a  sum  exceed- 
ing- iifty  guilders — to  an  api)eal  to  the  director  general  and  council  of 
New  Amsterdam.     This  right  of  appeal  was  reserved  by  the  original 


THE  "HALF-MOON"  LEAVING  AMSTERDAM. 


charter,  under  which  the  patroons  held,  but  it  was  practically  defeated 
by  exacting  from  the  tenants,  before  they  came  upon  the  manor,  a 
condition  that  they  would  in  no  case  appeal  from  the  judgment  of  the 
manorial  court.' 

In  1G38,  William  Kieft  was  appointed  governor.  This  governor 
was  a  grasping,  arbitrary,  narrow-minded  man,  full  of  his  own  import- 
ance, with  a  restless  activity  that  was  never  turned  in  any  right  direction. 


b  HISTORY    OF    THE    BEXCII    AND    JiAR    OF    :S^W    YORK 

or  applied  to  the  accomi^lishment  of  any  wise  purpose.  During  the 
nine  years  that  he  misgoverned  the  colony,  he  retained  in  his  hands  the 
sole  administration  of  justice.  In  obedience  to  his  instructions,  it  was 
necessary  that  he  should  keep  up  the  form  of  a  council,  but  that  he 
might  enjoy  exclusive  control,  he  reduced  it  to  one  member,  reserving 
two  votes  to  himself.'  In  1640,  a  charter  of  exemptions  and  privileges, 
designed  to  encourage  emigration,  was  adopted  by  the  College  of 
Nineteen,  in  which  it  was  declared  that  the  governor  and  council  should 
decide  all  questions  resx^ecting  the  riglits  of  the  company,  and  all 
complaints,  whether  by  foreigners  or  inhabitants  of  the  province ;  that 
they  should  act  as  an  orphan's  and  surrogate's  court,  judge  in  criminal 
and  religious  affairs,  and  administer  law  generally.  In  conformity  with 
the  charter,  Kieft  directed  that  the  council  should  sit  every  Thursday, 
as  a  court  of  justice,  for  "the  hearing  and  adjudication  of  all  civil  and 
criminal  processes,  and  for  the  redress  of  all  grievances  of  which  anj^one 


VIEW   OF   AMSTERDAM   AND   HARBOR 


might  have  to  complain  ;' '  and  he  established  certain  rules  for  securing 
the  attendance  of  parties,  and  for  the  general  conduct  of  business.^  In 
a  court  thus  constituted,  guided  and  controlled  by  a  man  vain,  rapacious 
and  vindictive,  it  may  readily  be  imagined  in  what  way  justice  was 
administered.  He  enacted  laws,  levied  fines,  or  intiicted  penalties 
according  to  his  will.  The  schout  fiscals,  of  whom  there  were  two  dur- 
ing his  governorship,  Ulricli  Lupoid  and  Cornelius  Vander  Huygens, 
were  occasionally  invited  to  be  present  at  the  sittings  of  the  council, 
but  neither  they  nor  his  counsellor.  Doctor  Johannes  La  Montague,  a 
learned  Huguenot  physician,  appeared  to  have  had  much  weight  with 
him.  Ever  involved  in  trouble,  eitluu"  with  the  natives  or  with  the 
colonists,  he  was  constantly  inflicting  fines,  conliscations  and  banish- 
ments; and  though  an  appeal  lay  from  his  judicial  decisions  to  the 


1  Brodhead,  327. 


1  1  O'Call.  IM.    BroilUcad,  i 


»i;v 


A  N 


III-  Niw   ^ 


rliiimlxM-  of  Anist.'idiiiii,  lie  rlVccI  ii;illy  cut  il  oil"  l-y  sul)j.'cl  in-  to  Jiii-- 
or  iinprisoiimriit  iinyoiic  who  :it  lriii|iti'(l  to  ivsoil  to  it.'  Siirli  ;iii 
admiiiistr:itiou  \v:is  fniitrul  al,  least,  of  one  result.  It  stirred  up  tlie 
colonists  to  demand  tlieeslablisliinentof  judicial  and  municipal  Irihunals, 
similar  to  tliost^  wliicli  llicy  liad  enjoyed  in  Holland.  There;  had  existed 
in  every  town  and  villa,<'-e  in  Holland,  for  more;  than  a  century,  a  local 
tribnnal  of  a  lui^hly  popuhir  character.  It  united  tlu;  twofold  functions 
of  a  court  of  jnstice  and  of  a  niuni('i])al  ^overnmeht,  and  consisted  of  a 
bench  of  magistrates,  denominated  burgomaster  and  schepens,  with 
whom  were  associated  a  schout,  whose  especial  duty  it  was  to  piosijcnte 

all  offenders  before  the  court,  

and  to  carry  into  execution 
its  resolves  or  decrees.  The 
burgomaster  was  a  kind  of 
mayor.  The  schepen  re- 
sembled an  alderman,  and 
the  schout  performed  the 
duties  which,  under  our 
system,  are  respectively  as- 
signed to  sheriffs  and  district 
attorneys.  The  principle  oL' 
popular  representation  was 
recognized  in  the  composi- 
tion of  this  body.  The 
mode  of  appointment  was 
not  uniform  throughout 
Holland;  but  generally  the 
inhabitants  of  the  town  who 
were  possessed  of  a  certain 
property  qualification,  as- 
sembled annually  in  a  town 
council  or  ^'■Vroedschap,^'' 
and  elected  eight  or  nin^' 
"good  men,"  and  this  repn- 
sentative    body    chose    the 

burgomaster  and  schepens.  The  schout,  under  the  feudal  law,  was 
appointed  by  the  count  or  manorial  lord,  though  in  certain  i)laces,  as  in 
the  city  of  Amsterdam,  he  was  chosen  by  the  burgomaster  and  schepens.  ^ 


'  Riker's  Annals  of  Newtown,  23. 

Breeden  Raedt  (Broad  Advice),  printed  at  Antwerp, 
1650,  and  attributed  to  Cornelius  Melyn,  president  of  the 
"  board  of  eight  men."  This  rare  tract  has  been  trans- 
lated by  Henry  C.  Murphy,  Esq.,  and  a  few  copies  have 
been  printed  for  private  circulation,  by  James  Lennox, 
Esq. 

Vertoogh,  Van  N.  N.,  printed  at  the  Hague,  1G49,  and 
attributed  to  Adrian  Van  der  Douck.  This  has  also  been 
translated  by  Mr.  Murphy,  and  printed,  together  with 
the  Breeden  Raedt,  by  Mr.  Lenno.x,  and  by  the  N.  Y. 


Hist.  Soc.  2  Coll.  2d  series,  251.  Brodhead,  277.  A 
translation  will  also  be  found  in  the  Holland  docnmente, 
iv.  74. 

2  Esprit  Origine  et  Progress  des  Institutions  Judiciaries 
des  principanx  pays  de  I'Europe,  par  J.  D.  Myer,  Paris, 
1823;  tome  iii.,  liiTe  5,  coup  d'oiel,  sur  I'etat,  politique 
des  Pays  Bas.  chap.  11,  253,  chap.  14,  387.  Placards  of 
HoUande,  vol.  ii.  695.  Van  Leuwen's  Roman  Dutch 
Law,  book  1,  chap.  ii.  §§  19,  20,  21.  Vander  Linden's 
Institutes  of  Holland,  part  1,  book  3,  chap.  1.  O'Call.  i. 
391 ;  ii.  210.    Brodhead,  453. 


10 


HISTORY  OF  THE  BENCH  AND  BAK  OF  NEW  YORK 


Kieft  wislied  to  go  to  war  with  the  Indians,  but  unwilling  to  take 
the  entire  responsibility  of  such  a  step,  he  deemed  it  prudent  to  call 
the  community  together  and  submit  the  question  to  them.  The  heads 
of  families  met,  and  according  to  the  custom  of  Holland,  selected  twelve 
men  to  represent  them.  This  representative  body  assented  to  the  war; 
but,  at  the  same  time,  presented  a  memorial  to  the  governor,  demanding 
among  other  reforms,  the  establishment  of  courts  of  justice  similar  to 
those  which  existed  in  the  towns  and  villages  of  Holland.'  This  privi- 
lege Kieft  felt  no  disposition  to  grant,  and  after  evading  the  request  for 
some  time,  he  finally  got  rid  of  it  by  dissolving  the  jDopular  body.     Two 

years  later,  however,  having  by 
his  rashness  and  folly  brought 
the  colony  to  the  brink  of  ruin, 
he  found  it  necessary  again  to 
convoke  the  community.  They 
met  as  before,  and  selected 
''eight  men"  to  advise  upon 
the  state  of  affairs.  This 
second  representative  council 
did  not  trouble  Kieft  Avith  any 
further  requests,  but  they  ad- 
dressed an  earnest  memorial  to 
the  College  of  Nineteen,  and  to 
the  States  General,  describing 
the  condition  of  the  colony, 
and  demanding  a  new  govern- 
or, and  the  establishment  in 
New  Amsterdam  of  a  burgher 
government,  according  to  the 
custom  and  usage  of  Holland; 
a  request  that  produced  no 
other  effect  but  the  recall  of 
Kieft  and  the  appointment  of 
Stuyvesant.' 
Peter  Stuyvesant  came  out  as  governor  in  1G47.  Van  Dinclage, 
who  had  acted  as  sellout  fiscal  under  Van  Twiller,  came  with  him  in  the 
capacity  of  vice  director,  and  Hendrick  Yan  Dyck  as  schout  fiscal. 
Immediately  after  his  arrival,  Stuyvesant  established  a  court  of  Justice, 
of  which  Yan  Dinclage  was  made  the  presiding  judge,  having  associated 
with  him  occasionally,  others  of  the  company's  officers.  The  new 
tribunal  was  empowered  to  decide  "  all  cases  whatsoever,"  subject  only 
to  the  restriction  of  asking  the  opinion  of  the  governor  upon  all  moment- 
ous questions,  who  reserved  to  himself  the  privilege  which  he  frequently 

'  Brodhead,  326. 

2  Brodhead,  364. 

3  The  Bliip,  "New  Netherland,"  a  vessel  of  two  hundred  and  sixty  tons,  three  times  tlie  size  of  lluasou's 
"llalf-Moon,"  brought  tlie  fltst  colonists  to  New  Amsterdam— the  Wallonns. 


SHIP      NhW    NKTHERLAND 


llh 


riiM  iti:\(ii   AM> 


I  I 


RLUC,  AMSTERDAM. 


exercised,  of  incsidiiii;-  in  (lie  coiiit,  u  linirv  it  Ih"  lli<)ii;;lil  i-ioju'r 
to  do  so.' 

The  desire  I'oi-  a  popular  form  of  ^-ovfniiiiciit  bccaim'  so  si  roii.ua  fli-r 
Stiiyvesanfs  ill-rival  that  he  found  it  necessary  to  make  sonw;  concession. 
He  allowed  (he  commonalty  to  elect  eighteen  persons,  from  whom  lui 
selected  nine,  as  a  per- 
manent body  to  advise 
and  assist  in  public 
affairs.  This  body,  wlio 
were  known  as  the  board 
of  the  nine  men,  had 
certain  judicial  powers 
conferred  upon  them. 
Three  of  their  number 
attended  in  rotation 
upon  every  court  day, 
to  whom  civil  cases  were 
referred  as  arbitrators, 
and  their  decision  was 
binding  upon  the  parties, 
though  an  appeal  lay  to 

the  governor  and  council,  upon  the  payment  of  one  pound  Flemish. 
These  tribunals,  Avith  the  manorial  courts  before  referred  to, constituted 
the  judicial  organization  of  the  colony  for  seven  years  afterwards. 

The  government  of  Stuyvesant  but  increased  the  popular  discontent. 
Though  a  man  of  capacity  and  integrity,  he  was  unfitted  for  the  place 
assigned  him,  or  his  duty  as  the  careful  guardian  of  the  pecuniary 
interests  of  a  commercial  corporation  was  inconsistent  with  the  just  and 
politic  rule  of  a  i)eople  like  the  colonists,  who  had  their  own  views  as 
to  the  manner  in  which  a  community  should  be  governed.  It  was 
natural  that  they  should  desire  to  live  under  institutions  to  Avhich  they 
had  been  accustomed  in  Holland,  and  which,  whatever  might  be  their 
advantages  or  defects,  had  to  them  the  merit  of  nationality,  and  w^ere 
associated  with  their  earliest  recollections.  This  Stuyvesant  did  not,  or 
would  not,  see.  Strongly  conservative  himself  by  nature,  and  long 
used  to  military  rule,  he  saw  in  a  demand  so  just  and  reasonable, 
nothing  but  a  desire  to  break  loose  from  the  restraints  of  lawful  author- 
ity. Though  not  an  unjust  man,  he  felt  himself  warranted  in  resorting 
to  any  means  to  crush  everything  in  the  shape  of  popular  encroachment, 
and  as  he  was  both  prompt  and  energetic,  his  government  became 
insufferably  oppressive.  Before  the  end  of  two  years  he  was  in  open 
collision,  not  only  with  the  board  of  nine  men,  but  with  the  schout 
fiscal,  Van  Dyck,  and  the  vice-director.  Van  Dinclage,  an  enlightened 
and  learned  man,  and  the  most  influential  member  of  his  council.     The 

>  Breeden  Eaedt,  extracts  lu  4  Doc.  Hist,  of  N.  Y.  69.    Albany  Rec.  20,  38,  29,  ;iS,  56  to  61.    2  O'Call.  24  to  31. 
Brodhead,  467,  523,  532. 


12         HISTORY  OF  THE  BEXCH  AXD  BAR  OF  NEW  YORK 

coimcil  lie  was  enabled  to  control,  but  not  so  with  the  popular  body. 
In  one  of  its  members,  Adrian  Yim  der  Donck,  he  had  to  cope  with  a 


•'/AS/f  t^/f X^  (/*« 


rV.K  OP  "BOARD  OF  NINE   MKN'"    ACOUKDITIN 


IlISl'OKV    ()!■•     Illl-.    ItKNCH     \\l>    UAU    <  >  I'    M:\V     VnKk  lil 

mail  uliosi-  ability  and  ciKM-^-y  were  f(|iial  to  his  own.  Iii.sli;^at<-<1  hy 
Van  di'V  J)()iick,  lli«>  board  of  nine  lui'ii  r«'solv('(l  to  sfiul  ji  didt^galJoii  (o 
Holland,  but  thoy  had  no  sooner  decided  n\Hm  this  step  thun  Stiiyvesant 
aiT(!sted  its  projector,  seizt^d  his  papers,  and  i)rociired  a  decree  of  the 
council  i-eniovin<5  liini  from  his  iK)sition  as  one  of  the  popular  repre.'?ent- 
atives.  ]?iit  this  violent  and  arbitrary  nu>asure  did  not  i)rodu(;e  tlm 
effect  expected.  The  nine  ni<»n  met  tos^etlier,  a  spirited  remonstrance 
was  prepared  to  the  States  General,  and  three  of  tlu^  number,  of  whom 
Van  der  Doiu'k  was  one,  went  with  it  as  a  deputation  to  Holland. 

This  mission  was  so  far  successful,  that  in  1050  a  i)rovisional  oi'der 
was  made  by  the  States  General,  which  among  other  things  decreed 
that  a  court  of  justice  should  be  erected  in  New  Netherland,  and 
that  a  burgher  government  should  be  established  in  New  Amsterdam, 
to  consist  of  two  burgomasters,  live  schepens  and  a  schout,  and  that  in 
the  mean  time,  or  for  three  years,  the  nine  men  should  continue  to 
exercise  jiulicial  powers  in  the  trial  of  civil  causes.'  This  order  was 
resisted  by  the  xYmsterdam  chamber  as  a  violation  of  the  j^rivileges 
granted  by  their  charter,  and  Stuyvesant,  no  doubt  under  instructions 
from  them,  refused  to  obey  it.*  When  it  was  known  at  New  Amsterdam 
that  Stuyvesant  would  not  comply  with  the  order,  the  nine  men  again 
appealed  to  the  home  government,  and  Van  der  Donck,  who  had 
remained  in  Holland,  appeared  as  their  advocate  before  the  States 
General.  A  long  struggle  ensued,  during  which  Stuyvesant  grew  more 
violent  and  unreasonable.  He  imprisoned  Van  Dinclage  for  uniting 
with  Van  der  Donck  in  a  protest  to  the  States  General,  dismissed  the 
schout  fiscal.  Van  Dyck,  from  office,  for  co-operating  with  the  nine  men, 
and  followed  up  these  arbitrary  and  illegal  acts  by  equally  violent 
measures  against  other  leaders  of  the  popular  movement."  The  Amster- 
dam chamber,  who  regarded  the  establishment  of  a  burgher  court  as 
likely  to  prove  detrimental  to  the  interests  of  their  commercial 
monopoly,  employed  every  means  to  counteract  the  efforts  of  Van  der 
Donck ;  but  after  maintaining  the  contest  for  two  years,  they  at  last 
thought  it  prudent  to  yield,  and  signified  to  Stuyvesant  their  assent  to 
the  wishes  of  the  colonists.  The  inhabitants  of  New  Amsterdam  were 
to  be  allowed  to  elect  a  schout,  two  burgomasters  and  five  schepens,  "as 
much  as  possible  according  to  the  custom  of  old  Amsterdam,"  and  the 
magistrates  thus  elected,  were  to  compose  a  municipal  court  of  justice, 
subject  to  the  right  of  appeal  to  the  supreme  court  of  the  province. 
"We  have  resolved,''  they  wrote  to  Stuyvesant,  "to  permit  you  hereby 
to  erect  a  court  of  justice  {een  haiicTc  Van  Justitie\  formed  as  much  as 
possible  after  the  custom  of  this  city;  to  which  end,  printed  copies 
relative  to  all  the  law  courts  here,  and  their  whole  government,  are 
transmitted.     And  we  presume  that  it  will  be  sufficient  at  first  to  choose 

»  Brodhcad,  514. 

»  O'Call.  aiO.     Brodliead,  540.    2  Doc.  Uistory  of  N.  Y. 

3  Brodhead,  525,  53x'. 


14 


HISXOKY  OF  THE  BKNCU   AND  BAR  OF  XEW  YORK 


one  schoiit,  two  burgomasters  and  five  schepens,  from  all  of  whose 
judgment  an  appeal  shall  lie  to  the  supreme  council,  where  definite 
judgment  shall  be  pronounced.'"  It  was  evident  from  the  order  of  the 
States  General,  that  these  officers  were  to  be  elected  by  the  commonalty, 
as  was  customary  in  the  cities,  towns  and  villages  of  Holland;  and  such 
would  seem  to  be  the  direction  in  the  dispatch  of  the  Amsterdam 
chamber.  The  language  of  the  dispatch  was,  perhaps,  a  little  ambigu- 
ous, and  Stuyvesant,  putting  the  construction  upon  it  that  conformed 
most  with  his  own  views,  and  which,  if  erroneous,  he  perhaps  felt  would 
not  be  unpalatable  to  his  employers,  resolved  to  appoint  the  new 
magistrates  himself.     He  not  only  determined  thus  to  keep  the  power 


EARLIEST    VIEW    (jK   NEW    AMSTERDAM. 


in  his  own  hands,  but  he  practically  defeated  the  provision  that  had 
been  made  for  a  city  sellout,  by  api^ointing  to  that  office  Cornelius  Van 
Tienhoven,  a  man  of  depraved  and  dissolute  life,  exceedingly  obnoxious 
to  the  colonists,  whose  only  recommendation  was  the  ability  he  had 
shown  in  carrying  out  the  measures  of  his  headstrong  and  arbitrary 
superior.  By  this  means,  the  two  offices  of  city  sellout  and  schout  fiscal 
were  united  in  the  same  person.  Stuyvesant  even  went  so  far  as  to 
refuse  to  allow  the  new  magistrates  to  appoint  their  own  clerk,  though 
it  had  been  the  usage  in  Amsterdam  from  the  time  that  tiiat  city  had 
had  a  burgomaster ;  and  as  a  crowning  act,  he  informed  the  new  tri- 
bunal, that  its  estalilishment  or  the  s(5()pe  of  its  authority  did  not  in  the 
slightest  degree  diminish  the  power  of  himself  and  his  council,  to  pass 
whatever  laws  or  ordinances  they  pleased,  for  the  municipal  government 
of  the  city.'' 

I  1  N.  Y.  Doc.  History,  387. 

»  N.  Y.  Roc.  of  Bargomasters  and  Schepens,  vol.  i.    Brodhead,  ."i-lS. 


'nil':    HKNCII     \N1»    I'.AK    ol'    M.W     V 


i:. 


On  llie  .second  of  l<\'l)iii:iiy,  K")."):},  In'  issued  :i  |ii()cl:ini:ili()ii,  :i].|.<iiiil- 
ing  as  biirgoinastcis,  Arciit  Van  llatlan  and  Marlin  Kri<'<r<'r,  and  as 
S('hei)ens,  Panlus  L.  \'an  drr  (iiist,  Maxiinillian  \'an  (iliccl,  A  Hard 
Anthony,  PtMcr  W.  Cowcnliovcn  and  William  Bccknian.  Fivn  days 
afterwards,  tlm  newly  ajjpointed  magistrates  assembled;  Van  Tieidioven, 
the  schout  liscal,  attending  in  liis  additional  capacity  of  city  schont, 
with  Jacob  Kip,  who  liad  been  appointed  secretary  oi-  town  clerk,  a 
station  he  continned  to  till  for  many  years  afterwards.  No  ])usiness 
was  transacted  other  than  to  give  notice  that  the  court  would  nuH't  for 
"the  hearing  and  detennining  of  all  disjjutes  b(;tween  parties,  as  far  as 
practicable,  in  the  building  heretofore  called  the  City  Tavern,  now  the 


Stadt  House  (City  Hall),  on  every  Monday  morning,  at  nine  o'clock." 
The  Stadt  House  not  being  ready  on  the  day  appointed,  the  next  meet, 
ing  took  place  four  days  afterwards  at  the  Fort,  where  the  court  was 
duly  organized  for  the  disi)atcli  of  business,  and  the  proceedings  opened 
with  prayer ;  the  following  eloquent  extract  from  which  will  sIioav  the 
sense  entertained  by  these  new  magistrates  of  the  duties  and  obligations 
of  the  judicial  office  : 

We  beseech  thee,  Oh!  Fountain  of  all  good  gifts,  qualify  us  by  thy 
grace,  that  we  may,  with  fidelity  and  righteousness,  serve  in  our 
respective  offices.  To  this  end  enlighten  our  darkened  undeistandings, 
that  we  may  be  able  to  distinguish  the  right  from  the  Avrong,  the  truth 
from  falsehood,  and  tliat  we  may  give  pure  and  uncorrupted  decisions, 
having  an  eye  upon  thy  Word,  a  sure  guide,  giving  to  the  simple,  wis- 
dom and  knowledge.  Let  thy  law  be  a  lamp  unto  our  feet  and  a  light 
unto  our  paths,  that  we  may  never  turn  away  from  righteousness. 
Deeply  impress  on  all  our  minds  that  w^e  are  accountable  not  to  man 


16 


IIISTOIIY    OF    THE   BENCH    AND    BAK    OF    XEAV    YOBK 


but  to  God,  who  seetli  and  lieareth  all  things.  Let  all  respect  of  persons 
be  far  removed  from  us,  that  we  may  award  justice  unto  the  rich  and 
unto  the  poor,  unto  friends  and  enemies ;  to  residents  and  to  strangers, 
according  to  the  law  of  truth,  and  grant  that  not  one  of  us,  in  any 
instance,  may  swerve  therefrom ;  and  as'  gifts  do  blind  the  eyes  of  the 
wise  and  destroy  the  heart,  keep,  therefore,  our  hearts  in  judgment. 
Grant  unto  us,  also,  that  we  may  not  rashly  x)rejudge  any  one,  but  that 
we  patiently  hear  all  parties,  and  give  them  time  and  opportunity  for 
defending  themselves;  in  all  things  looking  up  to  Thee  and  to  Thy 
Word  for  counsel  and  direction.' 

It  was  the  intention  that  the  municipal  government  conceded  to 
New  Amsterdam  should  conform,  as  far  as  practicable,  to  that  of  the 
parent  city.  How  essentially  Stuyvesant  departed  from  this  in  the  out- 
set has  been  already  shown,  and  his  resolving  that  the  burgher  govern- 
ment did  not  diminish  the  right  of  himself  and  his  council  to  regulate 
municipal  affairs,  left  the  precise  powers  of  the  new  tribunal  very 
indefinite  and  uncertain.  It  led  at  the  commencement,  to  an  organiza- 
tion of  the  municipal  government,  in  many  -respects  different  from  that 
of  Amsterdam,  and  to  great  unwillingness  at  first,  on  the  part  of  the 
burgomasters  and  schepens,  to  interfere  at  all  in  municipal  matters.  In 
Amsterdam  there  were  four  burgomasters,  each  of  whom  attended  three 
months  of  the  year,  in  rotation,  at  the  city  hall,  for  the  dispatch  of 
public  business,  and  the  schepens,  who  were  nine  in  number,  held  the 

regular  court  of  justice, 
having  civil  and  criminal 
jurisdiction,  which  was 
almost  unlimited.  The 
duties  of  the  schepens 
were  especially  judicial, 
while  those  of  the  sellout 
and  the  burgomasters 
were  chiefly  executive, 
and  the  three  bodies 
when  assembled  to- 
gether, constituted  a 
"college,"  for  the  en- 
actment of  municipal 
ordinances  and  laws, 
under  the  title  of  "the 
lords  of  the  court  of  the 
city  of  Amsterdam." 
There  was  also  a  permanent  council  composed  of  thirty-six  members, 
the  nature  of  which  need  not  })e  explained.'' 

Though  this  division  of  duties  and  labors  was  highly  essential  in  a 
city  of  the  magnitude  of  the  Dutch  commercial  metropolis,  it  was  not 


BOWERY   HOUSE  OF  G0\  ERNOR  STUYVESiNT, 


>  N.  Y.  Rec.  of  Burg,  and  Schep.  i.  3. 
»  J.  Wagenaar,  Amsterdarapcho  (Jeschiedeniesen,  1710. 
Meyer's  Institutious  Judiciaries,  tome  iii.  livre  5,  cliiip. 


11,2.'«. 
d.-r  I.iii 


Ordinances  of  Ameterdam,  vol.  il.  p.  695. 
leu,  3T'J.     3  l)'Call.  210. 


liis'ioKv   ui'    iiii':   1!i:n(1I    and   i;ak  oi'   m:w    mm;k  17 

so  necessary  in  a  small  (■oMimmiii y  like  lliat  of  New  Amsleidaiu,  \\  liidi 
fit  tlio  i)erio(l  in  question,  could  not  huva  einhniced  iimch  ov.i-  s.-vm 
liundred  inliabitants.'  From  this  cause,  ])eriiai)s,  as  well  as  Iroiii  I  lie 
nncei-tainty  resix'ctini^  tlu^  l)^e(^so  distrihiif  ion  or  extent  of  tlieir  duties, 
occasioned  by  the  notjce  they  had  received  from  Stuyvesant,  the  ntjwly 
ai)i)ointed  officers  assembled  toji;(^ther  as  one  body,  and  in  that  united 
capacity  continued  thereafter  to  discharge  legislative,  judicial  and 
executive  functions.  In  the  towns  and  villages  of  Holland,  the  sellout 
was  the  chief  oflicer  of  the  board.  He  convok(!d  the  court,  and  i)resided 
at  the  head  of  it,  but  without  taking  any  part  in  its  proceedings  otlier 
than  in  collecting  the  votes.  Ills  position  was  somewhat  analogous  to 
that  of  the  speaker  or  the  president  of  a  legislative  assembly,  except 
that  he  had  no  vote,  though  he  might  express  his  opinion,  and  he  was 
obliged  to  quit  the  bench  when  he  acted  as  prosecuting  officer,  the  oldest 


burgomaster  then  presiding  in  his  stead.'  In  Xew  Amsterdam,  however, 
Arent  Van  Hatten,  being  the  first  named  as  burgomaster,  assumed  the 
presidency  of  the  court,'  and  after  he  retired  from  office,  the  eldest 
burgomaster  continued  to  act  in  that  capacity  until  1656,*  when 
Stuyvesant  ordered  that  the  presidency  should  be  changed  every  three 
months,  which  continued  until  1660,  in  which  year  the  colonists  obtained 
what  they  had  long  petitioned  for,  a  separation  of  the  office  of  city 
schout  from  that  of  the  schout  fiscal.  This  separation  had  in  fact  been 
made  six  years  before,  and  a  city  schout  appointed  by  the  Amsterdam 
chamber,  but  this  officer,  Jochem  T.  Kuyter,  having  been  killed  in  a 
collision  with  the  Indians,  before  he  could  enter  ui^on  the  duties  of  his 
office,  Stuyvesant  retained  the  sellout  fiscal.  Van  Tienhoven,  in  the  dis- 
charge of  the  duties  of  city  schout,  and  persisted  against  the  urgent 


1  Valentino's  History  of  the  City  of  New  York,  p.  53.    Brodhead,  548. 

^  Van  Li'uwen,  book  1,  chap.  1,  sec.  21.    Meyer's  Institutions  Judiciaries,  tome  iii.  livre  5,  chap.  11 
.indeu,  377.     Brodhead,  674. 
»  X.  Y.  Rec.  Of  Burg,  and  Schep.  i.  4. 
*  N.  Y.  Rec.  of  Burg,  and  Schep.  ii.  188. 


18  HISTORY    OF   THE   BENCH   AND   BAR   OF   NEW  YORK 


/.;/„ 


/  ;'  /  #  ^ 


4  I  '']?■'       I' 


il  ( 


Misi(»i;v   (iK    I'lii:   itiiNcii    AM>   i:\i:  i>i'   m.w    v<ii;k  I'.> 

ronionstnmci'of  tlit>  iiili;il)it:ints  in  <'()iitiiiiiiii,i,^  liiiii  :iii<l  lli'-  siiccfcilini^ 
sellout  liscal,  Ps'icMsius  do  Sillc,  as  city  .sellout,  uulil  iln-  Anisi.id.irii 
ehamberiiually  ji|)poiut(Hl  to  the  ]K)st  Peter  Touneuian,  wIki  hud  roiimi  I  y 
been  selu)ut  of  a  district  ol"  Dlitcli  towns  on  Lon<i;  Island.  Tonneiuan 
received  liis  appointment  in  Holland,  and  when  he  came  out  h«i  insisted 
upon  his  riiilit  to  the  presidency  of  the  (^ourt.  In  this  he  was  sui»i)oi-t('d 
by  Stuyvesaiit,  who  went  personally  before  the  buri^omasters  and 
schepens,  and  insisted  not  only  that  Tonneman  should  sit  at  the  head  of 
the  court,  but  that  he  should  have  a,  vote  in  all  nuitters  in  which  he  was 
not  a  party,  a  privilege  never  granted  to  the  sellouts  in  Holland.  The 
burgomasters  and  scliepeiis  resisted,  but  after  a  long  and  angiy  dis- 
cussion, it  was  finally  agreed  that  Tonneman  should  have  what  he 
claimed,  nntil  the  question  should  be  determined  by  the  "Lords 
Majores,"  in  Holland.  It  does  not  appear  whether  any  further  action 
was  had  in  the  matter,  but  the  name  of  Tonneman  was  continued  there- 
after upon  the  records  as  the  chief  or  presiding  officer. '  In  1057,  that 
brancli  of  municipal  affairs  which  especially  required  the  discharge  of 
executive  duties,  had  increased  so  largely,  that  the  burgomasters 
organized  a  separate  court,  which  met  every  Thursday  to  dispose  of  it." 
In  view  of  the  serious  encroachment  made  upon  their  time  by  the 
accumulation  of  duties,  or  as  they  expressed  it,  the  impossibility  of 
attending  to  their  private  affairs,  the  burgomasters  petitioned  Stuy  vesant 
to  be  released  thereafter  from  attending  the  burgher  court,  but  he 
refused  to  grant  it,  and  the  court  continued  in  the  discharge  of  mixed 
legislative  and  judicial  functions  as  long  as  the  Dutch  held  possession 
of  the  province. 

The  proceedings  of -this  tribunal,  or  as  it  was  denominated,  "the 
worshipful  court  of  the  sellout,  burgomaster  and  schei)ens,''  were  all 
recorded  by  their  clerk  or  secretary;  and  as  everything  that  took  place 
before  it,  the  nature  of  the  claim,  or  of  the  offence,  the  statements  of 
the  parties,  the  proof  and  the  decision  of  the  court,  with  the  reasons 
assigned  for  it,  were  carefully  noted  and  written  down,  these  records 
supply  a  full  account  of  the  whole  course  of  its  proceedings,  and  furnish 
an  interesting  exposition  of  the  habits  and  manners  of  the  people. 
Upon  perusing  them  it  is  impossible  not  to  be  struck  with  the  compre- 
hensive knowledge  they  display  of  the  principles  of  jurisprudence,  and 
with  the  directness  and  simplicity  with  which  legal  investigations  were 
conducted.  In  fact,  as  a  means  of  ascertaining  truth,  and  of  doing 
substantial  justice,  their  mode  of  proceeding  was  infinitely  superior  to 
the  more  technical  and  artificial  system  introduced  by  their  English 
successors.  None  of  these  magistrates  were  of  the  legal  profession. 
They  were  all  engaged  in  agricultural,  trading  or  other  pursuits,  and 
yet  they  appear  to  have  been  well  versed  in  the  Dutch  law,  and  to  have 
been  thoroughly  acquainted  with  the  commercial  usages,  customs  and 

»  N.  Y.  Bee.  of  Burg,  and  Schep.  v.  414,  4S^t. 

»  N.  Y.  Rec.  of  Burg,  aud  Schep.    Ordinances  of  Burgomasters. 


20 


HISTORY   OF   THE   BEXCII   AND   BAR   OF   NEW    YORK 


municipal  regulations  of  the  city  of  Amsterdam.  This  is  the  more 
remarkable,  as  a  knowledge  of  the  Dutch  law  at  that  period  was  by  no 
means  of  easy  acquisition.  Though  the  principles  and  practice  of  the 
civil  law  prevailed  in  Holland,  it  was  greatly  modified  by  ancient  usages; 
some  of  them  of  feudal  origin,  others  the  result  of  free  institutions, 

which  had  existed  from  the  earliest 
period;  and  it  had  engrafted  npon 
it  a  number  of  public  regulations 
or  ordinances,  emanating  from  the 
different  provinces,  as  distinct  and 
partly  independent  sovereignties, 
which  had  originated  either  as 
feudal  privileges  or  sprung  up  dur- 
ing Sj3anisli  domination,  or  were 
the  result  of  the  long  struggle  and 
many  political  changes  which  the 
low  countries  had  passed  through 
before  the  general  establishment  of 
free  institutions.  In  every  town 
and  village  in  Holland,  moreover, 
there  existed  usages  and  customs 
peculiar  to  the  place,  which  had 
the  force  of  law,  and  were  not  only 
different  in  different  towns,  but 
frequently  directly  opposite.  The 
Dutch  law,  in  fact,  was  then  a  kind  of  irregular  mosaic,  in  which  might 
be  found  all  the  principles  as  well  as  the  details  of  a  most  enlightened  sys- 
tem of  jurisprudence  ;  but  in  a  form  so  confused  as  to  make  it  exceed- 
ingly difficult  to  master  it. '  That  these  magistrates  should  have  had  any 
general  or  practical  acquaintance  with  such  a  system  at  all,  was  scarcely 
to  have  been  expected;  but  that  they  had  is  apparent,  not  only  from  the 
manner  in  which  they  disposed  of  the  ordinary  controversies  that  came 
before  them,  but  in  their  treatment  of  difficult  questions  as  to  the  rights 
of  strangers,  their  familiarity  with  the  complicated  laws  of  inheritance, 
and  the  knowledge  they  displayed  of  the  maritime  law  while  sitting  as 
a  court  of  admiralty.  The  Amsterdam  chamber  sent  out  to  them  the 
necessary  books  to  guide  them  as  to  the  practices  of  the  courts  of 
Amsterdam,  and  when  tlie  province  passed  into  the  hands  of  the  English 
there  was  attached  to  the  court  a  small  but  very  select  library  of  legal 
works,  mainly  in  the  Dutch  language.  The  authoritative  work  used  in 
the  administration  of  the  criminal  law  was  Damhouder  s  Practyke  in 
Criminele  Saecken  (Practice  in  Criminal  Cases).     I  have  in  my  possession 


DUTCH  WINDMILL. 


•  H.  Fagel  and  J.  C.  Van  der  IIoop,  Dissert,  dc  usu 
Juris  Itomani  in  llollandia  Hag,  1779.  F.  Van  Mieris 
Groot  Charterbock  der  Graaven  Van  IloUand,  liCid, 
1753-4.  Deelen  Cau  en  Scheltus,  Placaat  Boek  Van  de 
Staaten   Generaal   Van   Ilolland,  en  Van   Zeelend,  9 


Deelen,  edition  of  1658.  Actes  des  Etats  Generaux  de 
ItiOO.  Kecuielles  ct  mis  on  ordre,  jiar  M.  Gacbard 
Bruxelles,  1849.  Oeuvres  do  Kaepsuit,  tome  iii.  Des 
Droit  des  Bclgis  et  Ganlois.  Meyer's  lustitutious  Judi- 
ciaries, tome  iii,  livre  5,  chap.  11. 


I'.AU    OK    NKW    V(II:K 


i?l 


:i  (•()]»>' of  lliis  work  i)iiMl(Ml  ill  Ivoltcifhini,  in  ICriS,  an  cdilidii  now  rarc^ 
ill  llollaiul,  I  boiiiilit  it  at  !i  hook  auction  in  New  York  Nonm  yc^ii-s  ago, 
and  being  found  lit'r(3  may,  from  its  date,  liave  been  oncj  of  the  books  of 
this  library.  There  were,  moreover,  men  educated  to  the  legal  i)ro- 
fession  in  tlie  colony.  Van  Dinclage,  the  vice  director,  who  had  acted 
as  sellout  fiscal  for  Van  Twiller,  and  chief  judge  of  the  court  established 
by  Stuyvesant,  was  a  doctor  of  laws, 
and  there  is  suflicic^nt  known  respecting 
him  to  warrant  the  opinion  that  he  Avas 
an  able  and  accomplished  jurist.  Van 
der  Doiick  was  admitted  to  the  same 
honorable  degree  in  the  University  of 
Leyden,  and  was  afterwards  an  advo- 
cate of  tlie  su])reme  court  of  Holland.' 
The  sellout  fiscal,  Nicasius  de  Sille,  who 
acted  as  city  sellout  for  four  years,  is 
stated  in  his  commission  from  the  Am- 
sterdam chamber  to  be  ''a  man  well 
versed  in  the  law.'"  In  addition  to 
these,  there  were  several  notaries.  Dirk 
Van  Schellyne,  who  came  out  in  1641, 
had  previously  practiced  at  the  Hague  ; 
David  Provorst  discharged  the  duties 
of  notary  for  some  years  before  Schel- 
lyne' s  arrival,  *  and  there  was  another 
notary  named  Matthias  de  Vos.^  Under 

the  civil  hiw  as  it  prevailed  in  Holland,  a  considerable  part  of  the  j)ro- 
ceedings  in  a  cause,  if  it  was  seriously  contested,  was  conducted  by  the 
notary,  who  was  required,  at  least,  to  be  well  versed  in  the  manner  of 
carrying  on  legal  controversies ;  and  as  he  Avas  frequently  consulted  by 
suitors  for  advice  as  to  their  rights  and  liabilities,  he  was  generally  well 
informed  and  capable  of  giving  it,°  Such  was  the  case  with  Van 
Schellyne,  who,  from  the  records  he  has  left,  was  evidently  an  experi- 
enced and  skillful  jn-actitioner.  He  was  not  only  connected  with  the 
court  in  the  discharge  of  his  duties  as  notary,  but  he  was  ai)pointed  by 
it,  in  1665,  high  constable  {concJiergio).''  All  of  these  men  must  have 
had  more  or  less  to  do  with  establishing  the  mode  of  legal  proceeding, 
and  of  advising  and  guiding  the  magistrates.  Van  Schellyne  and 
De  Sille  were  in  constant  official  communication  with  them.     Van 


STUYVESANT'S  PEAR  TREE. 


>  Practyke  in  Criminele  Saecken  ghemaeckt  door  dorst 
De  Damhouder  van  Brugge.  Nutem  ProfEeytelyck, 
vooral  le  Souvereins,  naillins,  Borgem  ro,  ende  Sche- 
penen,  etc.    Tat  Kotterdam  By  Jan  Van  Waesberglie  de 

"  2  O'Call.  550. 

s  Brodhcad,  561.    5  X.  Y.  Rec.  of  Burg,  and  Schep.  5. 

<  3  N.  Y.  Rec.  of  Burg,  and  Schep.  101. 

»  5  N.  Y.  Rec.  of  Burg,  and  Schep.  C42. 

•  S.  Van  Leuwen  Practyk  der  Notarissen,  Rott.  1742. 

'  N.  Y.  Rec.  of  Burg,  and  Schep.  ii.  643. 


Vonge  Armo  1628,  (Practice  in  Criminal  Cases,  by  Joost 
de  Dauihouder,  of  Bruges.  For  the  use  of  Sovereigns, 
Magistrates,  Burgomasters  and  Sheriffs,  etc.,  etc., 
Rotterdam,  1628). 


22 


HISTOEY  OF  THE  BENCH  AND  BAR  OF  NEW  YORK 


Dinclage  nmst  have  broiight  into  use  tlie  forms  of  legal  procedure  in 
the  court  over  which  he  had  presided,  and  Yan  der  Donck  was  one  of 
the  chief  getters  up  of  the  new  tribunal ;  and  though  he  survived  its 
creation  but  two  years,  he  was  no  doubt  advised  with  and  consulted  in 
respect  to  its  organization,  and  as  to  the  mode  in  which  it  was  conducted. 
"We  find  him  in  fact,  the  very  year  that  it  was  established,  claiming  its 
protection  as  a  "  citizen  and  burgher, ' '  against  the  menaces  of  Stuy  vesant. ' 
The  court  was  required  in  all  its  determinations,  to  regard  as  paramount 
law,  all  regulations  established  by  or  instructions  received  from  the 
chamber  of  Amsterdam  or  the  College  of  Nineteen,  for  the  government 
of  the  colony.  Next,  all  edicts  or  ordinances  duly  established  by  the 
governor  and  council ;  then  the  usages,  customs  or  laws  prevailing  in  the 

city  of  Amsterdam,  and 
where  they  furnished  no 
guide,  the  law  of  the 
fatherland,  by  which  was 
more  particularly  under- 
stood the  ordinances  of 
the  province  of  Holland 
and  of  the  states  general, 
and  the  civil  law  as  it 
prevailed  in  the  Nether- 
lands, or,  as  it  is  de- 
nominated by  Jurists, 
the  Roman  Dutch  Law. 


COKNER  OF  BROAD  STREET  AND  EXCHANGE  PLACE. 


-*M 


The  burgomaster 
and  schepens  had  con- 
stantly demanded  from  Stuyvesant  that  they  should  be  allowed  to 
nominate  a  double  number  of  persons,  from  whom  their  successors  should 
be  chosen,  as  a  partial  approximation  to  the  privileges  enjoyed  in  the 
Netherlands,  or  as  they  expressed  it,  ' '  in  the  beloved  city  of  Amster- 
dam ;"'but  he  continued  the  old  magistrates,  merely  supplying  vacan- 
cies, until  1656,  when  he  consented,  with  the  proviso  that  the  old 
magistrates  should  always  be  considered  as  re-nominated — which  left  it 
in  his  power  to  continue  them  precisely  as  he  had  done  before.  The  con- 
dition was  accepted,  and  the  nominations  made ;  but  Stuyvesant,  being 
displeased  with  some  of  the  new  names,  continued  the  old  magistrates, 
merely  supplying  vacancies,  until  the  time  for  reappointment  came 
around,  in  1658,  when  he  at  last  gave  way,  and  selected,  from  a  double 
list  of  names  presented  to  him,  the  magistrates  who  were  to  serve. 
The  burgomaster  and  schepens  then  selected,  continued  in  office  until 
1660,  when  a  new  nomination  and  appointment  was  made  every  year, 
in  the  month  of  February,"  which  was  continued  thereafter,  until  the 

>  N.  Y.  Rec.  of  Bnrg.  and  Schep.  i.  321. 
»  New  Amsterdam  Rec.  359,  373,  375. 

>  Rec.  of  N.  Y.  Burgomasters  and  Schepens,  iv.  299. 


irisroKV    OK  TIIK   ItKXC'II    AXn    }\.\\l 


m;\v  Yni:i 


r.i 


ijfjpfei 


Ku.ylisli  cliMiii^vd  lli.'oriiiiiii/iitioii  of  th.' coiiit.  All  tli<'s<;  iiiai^Mslndcs, 
as  far  as  can  be  <;at lienor,  were  iiicii  of  iiilcHi<i;en('e,  of  indcpciKlciKM', 
and  with  oiio  or  two  exoejitions,  of  liigh  moral  character,  evinciii;^  in 
thodischarge  of  their  duties,  and  especially  in  tlioso  ol'  a  judicial  naliue, 
that  unswerving  adliesion  to  established  iiilestind  customs,  thatsfciling 
g-ood  sense  and  strong  love  of  justice,  which  coiistitutrs  so  maikt-d  a 
feature  in  the  Dutch  national  character. 

The  right  which  Stuyvesant  chiinied,  of  interfering  in  the  adminis- 
tration of  city  matters,  appears  to  have  been  confined  to  what  related  to 
the  general  regulation  of  the  city's  affairs,  and  not  to  the  administiation 
of  justice  between  i)articular  individuals,  or  as  against  imblic  offenders. 
Upon  the  former  matter,  he  and 
the  burgomaster  and  schepens 
came  frequently  in  collision ; 
and  he  sometimes  gave  vent  to 
his  anger  at  their  insolence  and 
presumption,  by  a  public  pro- 
clamation, in  which  they  were 
contemptuously  referred  to  as 
"the  little  bench  of  justice;"' 
but  he  seems  to  have  abstained 
from  any  interference  with 
their  judicial  powers.  At  first 
he  was  disposed  to  limit  their 
action  in  criminal  cases ;  but 
finally  he  suffered  them  to  exercise  unlimited  criminal  and  civil 
jurisdiction,  except  the  infliction  of  punishment  in  cai)ital  cases.  The 
mode  of  proceeding  in  civil  cases  Avas  simple  and  summary.  The  court 
was  held  once  every  fortnight,  though  frequently  once  every  week,  upon 
a  stated  day.  Attached  to  the  court  was  an  officer  known  as  the  court 
messenger,  who,  at  the  verbal  request  of  the  party  aggrieved,  summoned 
the  adverse  party  to  appear  at  the  next  court  day.  If  the  defendant 
failed  to  appear,  he  incurred  the  cost  of  the  summons,  lost  the  right  to 
make  any  objection  to  the  jurisdiction  of  the  court,  and  a  new  citation 
was  issued.  If  he  failed  again,  he  incurred  additional  costs,  lost  the 
right  to  make  all  "dilatory  exceptions,"  or  to  adjourn,  or  delay  the 
proceeding.  He  was  then  cited  for  the  third  time,  and  if  he  did  not 
then  appear,  the  court  proceeded  to  hear  the  case  and  give  judgment, 
and  he  was  cut  off  from  all  right  of  appeal  or  review.  But  if,  upon 
hearing  the  plaintiffs  case,  the  court  deemed  the  presence  of  the 
defendant  essential,  they  might  issue  a  fourth  citation,  in  the  nature  of 
an  arrest,  and  compel  his  ajjpearance.  Parties,  however,  usually 
attended  upon  the  first  citation.  The  plaintiff  stated  his  case,  and  the 
defendant  made  his  answer.  If  they  differed  in  a  fact  which  the  court 
thought  material,  either  party  might  be  put  to  an  oath ;  and,  if  they 

•  Documents  of  Stuyvcsaiit'B  Couuiil  in  X.  Y.     Ki-cord  of  Burgomasters  ami  Schepens,  2t;th  of  February,  1U54. 


hRN()K'>H()l  = 


24 


IIISTOKY   OF  THE   BEXCH   AND   BAR   OF   NEW   YORK 


were  still  in  conflict,  the  court  might  reqnire  the  examination  of  wit- 
nesses, and  the  matter  was  adjourned  nntil  the  next  court  day,  during 
which  time  either  party  might  take  the  depositions  of  his  witnesses, 
before  a  notary,  or  the  court  might  require  that  the  witnesses  should  be 
produced,  to  be  examined  orally  before  it,  at  the  adjourned  day,  under 
oath.  But  most  generally,  the  matter  was  disposed  of  upon  the  first 
hearing  of  the  parties,  without  resorting  to  the  oath,  or  the  examination 
of  witnesses.  If  it  was  intricate,  or  it  was  difficult  to  get  at  the  truth, 
it  was  the  constant  practice  to  refer  the  cause  to  arbitrators,  who  Avere 
always  instructed  to  bring  about  a  reconciliation  between  the  parties, 
if  they  could ;  and  this  was  not  confined  merely  to  cases  of  disputes 
about  accounts,  or  to  differences  growing  out  of  contracts,  but  it 
extended  to  nearly  every  kind  of  case  that  came  before  the  court.  The 
arbitrators  were  left  to  the  choice  of  the  litigants,  or  appointed  by  the 


court,  or  one  of  the 
to  take  the  matter  in 
concile  the  contes- 
ciliation  could  be  ef- 
would  not  submit  to 
or  conclusion  of  the 
satisfied  party  might 
before  the  court,  where 
of.  These  references 
every  court  day.  In 
ness  of  this  tribunal 
court  of  conciliation : 


SEAL  OF  NEW  NETHERLAND. 


schepens  was  directed 
hand,  and  try  and  re- 
tants.  If  no  recon- 
fected,  or  the  parties 
the  final  determination 
arbitrators,  the  dis- 
again  bring  the  matter 
it  was  finally  disposed 
were  frequent  upon 
fact,  the  chief  busi- 
was,  in  acting  as  a 
and    it  is  worthy  of 


remark,  that  though  the  amount  involved  was  frequently  considerable, 
or  the  matter  in  dispute  highly  imjjortant,  that  appeals  to  the  court 
from  the  decision  of  the  arbitrators  were  exceedingly  rare.  Indeed,  the 
first  appeal  to  be  found  upon  the  records  was  brought  by  a  stranger. ' 

There  was  a  more  formal  mode  of  proceeding,  if  parties  preferred  it. 
After  the  plaintiff  had  stated  his  case,  the  defendant  might  require  him 
to  put  it  in  writing,  and  a  day  was  given  to  that  purpose.  The  defend- 
ant w^as  then  obliged  to  answer  in  writing,  to  which  the  plaintiff  could 
reply,  and  the  defendant  rejoin,  and  there  ended  the  pleadings.  Each 
jjarty  then  went  before  the  notary  of  his  choice,  and  had  the  depositions 
of  his  witnesses  reduced  to  waiting,  a  draft  or  copy  of  which  was 
retained  by  the  notary,  in  a  book  kept  bj^  him  for  the  purpose ;  and 
where  it  was  necessary,  a  commission,  or,  as  it  was  called,  a  rcquisitory 
letter,  might  be  obtained  for  the  examination  upon  interrogation  of 
witnesses  residing  beyond  the  court's  jurisdiction,  who  were  examined 
before  the  judges  of  the  local  court  where  the  witness  resided,  who 
sealed  up  the  examination,  and  transmitted  it  to  the  court  having  juris- 
diction of  the  cause.  When  the  pi'oofs  were  complete,  they  were  added 
to  the  pleadings,  the  whole  constituting  what  was  called  the  memorial, 

'  N.  Y.  Rcc.  of  Burgomasters  and  Schepens,  i.  188,  231;  ii.  101,  170;  iii.  188;  v.  190;  vi.  •Jr4;  vii.  180. 


lti:N(ll     AN 


.Ni:\\'   Y*ti:K 


which  \v;is  sul>mitl<'<l  lo  iIk'  coiirl,  .'ilhrr  parly  iM'in-al  lil.cit\  in  inspect 
it,  and  liaviiig  tho  iii;h(,  within  a  ccrlaiu  time,  to  hav*}  any  of  th»;  wit- 
nesses of  liis  advei'sary  examined  ujjon  cross  interro^atoi'ies,  in  respect 
to  anything  contained  in  their  deposition,  ^vhi(•h  was  dcenird  material, 
or  to  have  additional  witnesses  examined  on  his  own  behalf  in  reply; 
the  manncM-  of  conducting  which  subsecpient  examination  was  arranged 
by  the  judge.  IJiit  this  mode  of  i)roceeding  being  dilatory  and  expensive, 
was  rarely  I'esorted  to.  The  great  majority  of  cases  were  referred  to 
arbitration,  or  disposed  of  npon  a  summary  hearing  of  the  parties  before 
the  magistrates  ;  and  it  may  be  important  to  note,  in  respect  to  the 
rules  of  evidence,  that  whenever  a  paper  or  document  was  produced, 
puri)orting  or  avowed  to  be  in  the  handwriting  of  a  party,  it  was  assumed 
to  be  his  handwriting,  unless  he  denied  the  fact  under  oath  ;  and  that 
merchants  or  traders  might  always  exhibit  their  books  in  evidence, 
where  it  was  acknowledged  or  proved  that  there  had  been  a  dealing  be- 


tween the  parties,  or 
been  delivered,  i)ro- 
larly  kept  with  the 
persons,  things,  year, 
l^ractice  which,  in  the 
and  Xew^  York,  sur- 
bunals,  and  has,  at  the 
tain  qualilications  or 
to  nearly  every  state 
credit  was  given  to  all 
where  they  were 
or  confirmed    by    the 


SEAL  OF  NKW  AMSTERDAM 


that  the  article  had 
vided  they  were  regu- 
proper  distinction  of 
month  and  day  —  a 
states  of  New  Jersey 
vived  these  Dutch  tri- 
present  day,  with  cer- 
restrictions,  extended 
in  the  Union.  Full 
such  books,  especially 
strengthened  by  oath, 
death   of  the  parties. 


and  also  to  memorandums  made  between  parties  by  sworn  brokers,  A 
leading  distinction  in  evidence  was  also  made  between  what  was  termed 
full  proof ^  as  Avhere  a  fact  Avas  declared  by  two  credible  witnesses,  as  of 
their  omtl  knowledge,  or  it  was  proved  by  a  document  or  written  paper, 
and  half  proof  as  Avliere  it  rested  upon  the  positive  declaration  of  knowl- 
edge by  one  Avitness  only,  under  which  latter  head,  as  weak  but  assist- 
ing evidence,  hearsay  was  allowed,  which,  in  some  instances,  as  in  the 
case  of  certain  dying  declarations,  was  admitted  to  the  force  of  full 
proof  ;  and  as  the  determining  of  a  case  upon  the  evidence  of  witnesses 
was  left  to  the  judges,  very  discriminating  and  nice  distinctions  were 
made  in  adjusting  or  weighing  its  relative  force  or  value.' 

When  judgment  Avas  rendered  against  a  defendant  for  a  sum  of 
money,  time  was  given  for  payment,  usually  fourteen  days,  for  the  dis- 
charge of  one  half,  and  the  remainder  in  a  month.  If,  at  the  expiration 
of  that  time,  he  did  not  comply,  application  was  made  to  the  court,  and 
the  schoiit,  or  usually  the  court  messenger,  went  to  the  delinquent,  and 
exhibiting  a  copy  of  the  sentence  and  his  wand  of  office,   which  was  a 


>  Rec.  of  N.  Y.  Hurg.  niul  (! 
chap.  xiii.  to  xx.  aud  xxiii. 


i,  viii.      Meyers'  Institutions  Judiciaries,  chap.  M, 


A'au  Leuwen,  book 


26 


HISTORY 


IIY    OF   THE   BENCH   AND   BAR   OP^   NEW  YOUK 


ms'i'oKY   (•!••  'iiii':   iti:N<'ii    and   iim:  t>\-  ni;w    mwik  'J7 

hunch  (if  thorns,  siimnionrd  him  to  iii;ikr  .s:itisl";ictioii  in  t  wciily-foin- 
lioui's.  II",  ;it  t  he  ('5:pii;ili()ii  of  timt  tiini-,  lh(^  iunoiinl,  was  not  ikThI,  the 
(l(>lin(|ut'iil  was  ai;ain  snnmiont'd  to  pay  w  illiiii  twcnly-foiii-  lioiirs,  which 
inv()lv«'(l  a(hliti<)nal  expense;  and  il",  wlien  tliat  time  expired,  lie  was 
still  in  default,  th(Mnessenger,  in  tlie  prest»nce  of  a  schepen,  toolc  into 
custody  the  debtor's  movable  <>oods,  which  he  detained  for  six  days, 
within  which  time  tliey  might  \w  red(»emed  on  payment  of  tlu^  expenses. 
If  they  were  not  redeemed,  notice  was  then  given  by  i)ublicly  announc- 
ing njion  a  Sunday,  and  upon  a  law  day,  that  they  Avould  be  sold,  and 
at  the  next  law  or  market  day  they  were  disposed  of  by  auc^tion.  If  it 
was  necessary  to  levy  upon  or  sell  real  estate,  or  what  in  the  civil  law  is 
ttn-med  immovable  property,  a  longer  term  was  allowed,  and  greater 
formalities  were  required.  The  manner  of  selling  it  was  peculiar.  The 
officer  lighted  a  candle,  and  the  bidding  went  on  while  it  was  burning, 
and  he  who  had  olTered  the  most  at  the  extinction  of  the  candle,  was 
declared  the  i>urchaser,  which  diffeied  from  the  ordinary  mode  in  a 
Dutch  auction,  where  a  public  offer  of  the  property  is  made  at  a  price 
beyond  its  real  value,  which  is  gradually  lowered  or  diminished  until 
one  of  the  company  agrees  to  take  it. ' 

The  civil  business  of  the  court  was  large  and  varied  ;  such  as  actions 
for  the  recovery  of  debts,  which  were  generally  cases  of  disputed  accounts, 
or  of  misunderstanding  between  the  parties,  for  in  proof  the  i)robity 
and  punctuality  of  the  Dutch  suits  by  creditors  to  enforce  payments 
from  delincpient  debtors,  formed  but  a  small  proportion  in  the  general 
mass  of  this  business.  There  were  proceedings  by  attachments  against 
the  property  of  absconding  debtors,  or  of  non  residents  or  foreigners,  on 
which  security  was  required  of  the  debtor  intending  to  depart,  to  release 
the  property  from  the  attachment ;  actions  to  recover  the  possession  of 
land,  or  to  settle  boundaries,  a  proceeding  somewhat  similar  to  the 
relief  afforded  by  our  courts  of  equity  upon  a  confusion  of  boundaries; 
actions  to  recover  damages  for  injuries  to  land  or  to  personal  property, 
or  to  recover  specific  personal  property  as  in  i-eplevin,  or  its  value  as  in 
trover. 

Actions  for  freight, for  seamen's  wages,  for  rent, for  breach  of  promise 
of  marriage,  where  the  performance  of  the  contract  was  enforced  by 
imprisonment ;  for  separation  between  man  and  wife,  in  wdiich  case  the 
children  Avere  equally  allotted  to  the  parties,  and  the  property  divided," 
after  the  j)ayment  of  debts  ;  proceedings  in  bastardy  cases,  in  which  the 
male  was  required  to  give  security  for  the  support  of  the  child,  and  in 
Avhich  both  delinquents  might  be  punished  by  fine  or  imi^risonment. 
Actions  for  assault  and  battery,  and  for  defamation,  which  were  quasi 
criminal  proceedings,  punishable  by  line,  imprisonment  or  both,  though 
the  defamer  was  generally  discharged  upon  making  a  solemn  public 
recantation  before  the  court,  sometimes  upon  his  knees,  asldng  pardon 

>  Rec.  of  N.  Y.  Burg,  and  Schep.  i  204,  250  ;  v.  307,  576.    Van  Leuwen,  book  5,  chap.  25. 
'  Eec.  of  N.  Y.  Burg,  and  Schep.  iv.  1659.    Eec.  of  Mayor's  Court,  i.  533. 


28 


HISTORY  OF  THE  BENCH  AND  BAR  OF  NEW  YORK 


of  God  and  of  the  injured  party.  Pecuniary  compensation,  for  injuries 
to  person  or  character,  could  not  be  enforced  ;  thpugh  cases  occurred 
in  which  the  defendant  was  discharged,  it  appearing  that  he  had  made 
compensation  to  the  other  party  in  money  or  goods.  And,  from  the 
frequent  application  made  to  the  court  for  redress  in  cases  of  defama- 
tion, detraction  would  seem  to  have  been  a  vice  to  which  the  inhabitants 
were  particularly  prone. 

The  court,  also,  acted  as  a  court  of  admiralty,  and  as  a  court  of  pro- 

^_^^  bate,   in  taking  proofs  of  last 

^^^  ^  wills    and   testaments,    and    in 

appointing  curators  to  take 
charge  of  the  estates  of  widows 
and  orphans.  Application  was 
made  to  Stuyvesant  for  liberty 
to  estal)lish  an  orphan  house, 
similar  to  the  celebrated  institu- 
tions which  exist  throughout 
Holland.  He  did  not  think  that 
such  an  establishment  was  neces- 
sary, but  he  afterwards  assented 
to  the  appointment  of  orphan 
masters,  and  those  officers  acted 
in  aid  of  the  court.  Some  of  its 
proceedings  in  the  exei'cise  of 
this  branch  of  its  jurisdiction,  will  serve  to  illustrate  how  tenaciously 
the  Dutch  clung  to  old  forms  or  legal  ceremonies,  as,  where  a  widow, 
to  relieve  herself  from  certain  obligations,  desired  to  renounce  her 
husband's  estate  ;  it  is,  in  all  such  cases,  recorded,  that  the  intestate's 
estate  "has  been  kicked  away  by  his  wife  with  the  foot,"  and  that 
she  has  duly  "laid  the  key  on  the  coffin.'"  The  court  also  exer- 
cised a  peculiar  jurisdiction,  that  of  summoning  parents  or  guardians 
before  them,  who,  without  sufficient  cause,  withheld  their  assent  to  the 
marriage  of  their  children  or  wards,  and  of  compelling  them  to  give  it.' 
It  also  granted  passports  to  strangers,  or  conferred  on  them  the  burgher 
right,  a  distinction,  which  now,  that  it  has  ceased  to  be  attended  with 
any  practical  advantage,  is  still  kept  up  in  the  custom  of  tendering  or 
presenting  the  freedom  of  the  city  to  strangers  as  a  mark  of  respect. 
It  may  not  be  uninteresting,  moreover,  to  state,  that  the  origin  of  a  fee 
bill,  for  regulating  by  a  fixed  and  positive  provision  of  law,  the  costs  of 
attorneys  and  otlier  public  officers,  is  to  be  traced  to  Stuyvesant.  On 
the  2.')th  of  January,  1658,  he  put  forth  what  is  known  in  Holland  as  a 
placard,  that  is,  a  proclamation,  or  ordinance,  emanating  from  some 
legislative  or  executive  authority,  having  the  force  of  law,  by  which  he 
established  a  regular  tariff  of  fees.  In  England,  the  fees  of  attorneys 
and  other  officers  of  the  court  has  generally  been  regidated  by  the  court, 

«  Rcc.  of  N.  Y.  Burg,  and  Schep.  ii.,  32.  'J  «ec.  of  N.  Y.  Burg,  and  Schep.  vols.  1,  2,  3,  J,  5,  C. 


WATER  GATE,  FOOT  OF  WALL  STREET. 


niSToKV    <)|-    TIIK    liKNCir    AM)    IIM 


2'.t 


and  iK.l  l>y  :iiiy  iml.lic  ;i((.  In  Nrw  Yoil;,  Ik.w.-v.t,  tin-  fcs  (,f  i)ul)li(; 
ollicois  li:i8  been  ;i  in:itt«'r  of  ]»ul)li<;  i'(\i;iil;iti()ii  I'loin  ;i  very  «'aily  jx^riod. 
Ten  or  tu'olve  years  after  the  restoration  of  tlie  proviuce  to  the  Eng- 
lish, tliey  Avere  legiilated  by  an  ordinance  of  tlie  governor,  and  after- 
wards by  acts  of  the  general  assembly  ;  and  there  is  every  reason  to 
believe  that  the  practice,  especially  as  resi)ects  the  fees  of  attorneys 
and  officers  of  the  court,  was  derived  from  the  Dutch.'  A  copy  of  Stuy- 
vesant's  ordinance  remains  in  the  records  of  the  burgomaster  and 
scliepens,  and  as  the  preamble  to  the  document  is  of  interest  as  a  legal 
curiosity,  we  shall  take  the  liberty  to  insert  it.  "  AVhereas,  the  director 
general  and  council  of  New  Netherhuid,  have  sutficient  evidence  from 
their  own  experience,  in  certain  bills  of  costs  which  have  been  exhibited 
to  them,  as  well  as  by  the  remonstrances  and  complaints  which  have 
been  presented  to  them  by  others,  of  the  exactions  of  scriveners,  notar- 
ies, clerks,  and  other  licensed  persons,  in  demanding  and  collecting 


THE  CANAL  IV  BROAD  STREET. 


from  contending  persons,  excessively  large  fees,  and  money,  for  writing 
for  almost  all  sorts  of  instruments,  to  the  manifest,  yea,  insufferable 
expense  of  judgments  and  judicial  costs ;  some  of  whom  are  led  by  their 
covetousness  and  avarice  so  far,  as  to  be  ashamed  to  make  a  bill  or 
specify  the  fees  they  demand,  but  ask  or  extort  a  sum  in  gross.  There- 
fore, to  provide  for  the  better  and  more  easy  administration  of  justice, 
the  director  general  and  council  do  enact"  &c.;  after  which  follows 
provisions  requiring  the  licensing  of  the  officer  entitled  to  take  the  fees, 
the  keeping  of  a  record  of  all  fees  charged  by  them,  and  prohibiting 
champetry  and  other  abuses.  It  is  then  provided,  that  the  officers 
enumerated  shall  serve  the  poor  gratis,  for  God's  sake,  but  may  take 
from  the  wealthy  the  fees  specified.     Each  particular  service  is  then 

»  Ordinance  and  Table  of  Fees  in  first  edition  of  the  Colonial  Laws,  by  Bradford,  1094;  Charter  Book  and  Acta 
ot  Assembly  of  1683,  in  office  of  Secretary  of  State;  Laws  of  1709,  ordinance  regulating  fees. 


30  HISTORY   OF   THE  BENCH   AND    BAR   OF   NEW    YORK 

enumerated  in  the  manner  of  our  former  fee  bills,  with  the  number  of 
stivers  allowed  for  each.  Among  the  provisions  is  the  following  entry  : 
"  No  drinking,  treats,  presents,  gifts  or  doucers  shall  be  inserted  in  any 
bill,  or  demanded;"  and  the  ordinance  concludes  by  directing,  that  it 
shall  be  read  once  every  year  in  the  court,  upon  a  day  sijecified,  to  the 
ofhcers  enumerated,  who  were  thereupon  to  be  sworn  faithfully  to  ob- 
serve it ;  any  officer  being  subject,  for  a  violation  of  its  provisions,  to  a 
fine  of  fifty  guilders,  or  the  loss  of  his  office. ' 

In  criminal  cases,  the  schout  prosecuted  as  plaintiff  on  behalf  of  the 
community.  At  his  requisition,  and  upon  the  inspection  by  a  magis- 
trate of  evidence  sufficient  to 
warrant  a  belief  that  an  offence 
had  been  committed,  the  offender 
might  be  arrested  or  summoned 
according  to  the  discretion  of 
the  magistrate ;  though  where 
the  culprit  was  detected  in  the 
actual  perpetration  of  the  deed, 
THE  NEW  YORK  SLAVE  MARKET.  or   where,  lu  tho  judgmeut  of 

the  schout,  there  was  strong 
ground  of  suspicion  against  him,  and,  in  his  opinion  the  public  inter- 
est demanded  it,  he  might  direct  his  immediate  arrest ;  but  in  all 
such  cases  the  schout  was  obliged  to  give  notice  of  the  arrest  to  the 
magistrate  within  twenty-four  hours,  who  was  thereupon  bound  to 
investigate  the  matter — a  provision  that  practically  dispensed  with 
the  necessity  of  the  writ  of  habeas  corpus,  so  familiar  in  the  history 
of  the  English  law.'  Bail  was  allowed,  except  in  cases  of  mui'der, 
rape,  arson  or  treason.  There  were  two  modes  of  trying  the  pris- 
oner ;  either  publicly  upon  general  evidence,  which  was  the  ordinary 
mode,  or  by  examining  him  secretly  in  the  presence  of  two  schepens, 
in  which  written  interrogatories  were  propounded  to  the  prisoner,  to 
which  he  was  obliged  to  return  categorical  answers.  The  Dutch  law 
then  adhering  to  the  general  policy  of  the  civil  law  in  respect  to  extort- 
ing confessions  from  offenders,  and  making  use  of  the  torture  and  of 
all  those  inquisitorial  aids  and  appliances  which  have  cast  such  a  blemish 
upon  the  criminal  jurisprudence  of  Europe.'  The  torture,  however,  was 
not  used,  except  where  the  presumptive  proof  amounted  almost  to  a 
certainty ;  and  I  have  found  but  one  case  upon  the  records  in  which 
this  cruel  and  unnecessary  test  was  resorted  to.  Criminal  i)rosecutions 
were  not  frequent,  nor  w^ere  the  offenses  generally  of  a  grave  character. 
The  punishments  were  by  fines,  which  were  distributed  in  three  equal 
parts,  to  the  sellout,  to  the  court,  and  to  the  poor  ;  by  imprisonment, 
w^hipping,  the  pillory,  banishment  from  tlie  city  or  province,  or  deatli, 

•  Placards  of  Stuyvesant,  in  Rec.  of  N.  Y.  Burg,  and  Schep. 

»  Ordinances  of  Amsterdam,  p.  46,  and  eeq.  Ed.  of  1C44. 

»  La  Practique  et  encheridon  des  causes  Criminills,  Louvain,  1555.  Van  Lcowen,  book  5,  chajis.  27,  28. 


iii>r(»i;v  di'   iiii;  I!i;n(  ii    am*   i'.au  (•!■    m.w    v<>i:k  .;i 

wliich,  however,  could  not  Ix'  inHiclfd  witlioiil    the  coiiciinvnc.'   <.f   llic 
governor  and  Ids  council.' 

Courts  of  (ho  same  popular  character  w<M<i  e.s(al>li.slied  upon  Lon^ 
Island,,  sliortly  after  the  erection  of  the  one  at  New  Amsterdam.  A 
court  with  two  sdu^pena  existed  at  Breuklin  {IlrooJcli/n)  before  \i\M, 
whicli  in  that  year  was  increased  to  four  scliejjens.  Thei'e  was  one  at 
Midwout  (Fhitbush)  with  three  schepens,  and  another  at  Amersfoort 
(Flatlands).  David  Provoost,  who  liad  been  a  notary  at  New  Amster- 
dam, was  made  sellout  of  Breuklin,  and  a  district  court  was  established, 
composed  of  the  sellout  of  Breuklin,  and  of  deh'gates  from  tliese  three 
tribunals,  which  was  continutnl  until  IGOl.  In  that  year,  similar  courts 
were  established  at  Boswyck  (Bushwick)  and  at  New  Utrecht,  and  the 


STU\'\'ESANT'S   HOME,  "THE   WHITEHALL,"  1653. 

whole  were  formed  into  a  district  known  as  "the  five  Dutch  towns," 
to  which  there  Avas  attached  one  schout,  residing  at  Breuklin,  each  town 
having  its  separate  courts. '  Courts  were  also  established  by  virtue  of 
a  grant  from  Stuyvesant,  among  the  English  settlers  at  Canorasset 
(Jamaica)  in  1  Go 6,' and  at  Middleburgh  (Newtown)  in  16r)9.'  In  16r)2 
Stuyvesant,  by  the  simple  exercise  of  his  prerogative,  established  a 
court  at  Beverwyck  (Albany)  independent  of  the  patroon's  court  of 
Raensellervyck. "  It  was  held  at  the  house  of  the  vice  director,  upon 
the  second  floor,  in  a  room  directly  under  the  roof,  without  a  chimney, 
and  to  which  access  was  had  by  a  straight  ladder,  through  a  trap  door.' 
The  courts  thus  enumerated,   including  the  patroon  courts,  already  re- 


'  Rec.  of  N.  Y.  Bnrg.  and  Schep.  iv.  141. 
»  2  Thompson's  History  of  Long  Island,  96.    2  O'Call. 
313,  323. 
3  Brodhead,  580. 
<  Thompson's  History  of  Long  Island,  90. 


'  Hiker's  Annals  of  Newtown. 

»  Albany  Rec.  18:3.    Records  of  Jlortgages,  Albany, 
book  A.    2  O'Call.  183. 
'  2  O'Call.  311. 


32 


HISTORY   OF   THE   HKNCII    AND   BAR   OF   NEW   YORK 


ferrecl  to,  and  the  supreme  or  appellate  court  at  New  Amsterdam,  com- 
j)osed  of  the  governor  and  council,  constituted  the  judicial  tribunals  of 
New  Netherland,  until  the  colony  passed  into  the  hands  of  the  English. 
That  event  took  place  on  the  6th  of  September,  1664. '  By  the  terms 
of  capitulation  entered  into  between  Col.  Richard  Nicolls  and  Stuy- 
vesant,  it  was  agreed  that  such  of  the  inhabitants  as  desired  might  re- 
turn to  Holland,  and  that  those  who  remained  should  continue  to  enjoy 
their  own  customs  concerning  their  inheritances  ;  that  public  records, 
except  such  as  concerned  the  States  General,  should  be  carefully  kept ; 
that  all  contracts  made  before  the  signing  of  the  articles  should  be  de- 
termined according  to  the  manner  of  the  Dutch  ;  that  no  judgment  that 
had  passed  any  judicature  in  the  colony  should  thereafter  be  called  in 
question,  and  that  all  inferior  civil  officers  and  magistrates  should  con- 
tinue as  they  were  until  the  customary  time  of  new  elections,  when  they 


ALISADES  ALONG  WALL  STREET. 


should  then  have  the  choice  of  their  successors,  the  new  magistrates  so 
chosen  taking  the  oath  of  allegiance  to  the  king  of  Great  Britain."  Im- 
mediately upon  assuming  the  government,  as  the  representative  of 
James,  Duke  of  York,  to  whom  the  territory  had  been  ceded  by  virtue 
of  agi-ant  or  patent  from  Charles  II.,  Nicolls  changed  its  name,  as  well 
as  that  of  the  city,  to  New  York,  but  abstained  from  any  interference 
with  the  municipal  government  of  the  city,  or  with  the  administration 
of  justice,  until  a  later  j)eriod. 

He  carried  out  the  terms  of  capitulation  that  had  been  agreed  upon, 
and  adapted  his  measures  so  judiciously,  that  the  municipal  govern- 
ment of  the  burgomasters  and  schepens  was  resumed  within  a  week, 


•  Brodhead,  70ii. 

'  2  Rev.  Laws,  Apijciidix,  No.  1. 


:!:{ 


iiiid  th(>  adininislnitioii  cf  jiistic' \v:is  jMoc-cdrd  uilli  :is  Ix-foiv.  I  poll 
re.snniing  llicir  duties,  tli<*  biirgoinaslors  and  .schcpciis  addn'sscd  ;i  Jong 
h'ttcr  to  tliH  dinu'tors  of  tlu^  West  India  Company,  announcing  the 
capitulation,  and  setting  forth  tlie  reasons  why  they  liad  di^enu'd  it  best 
to  continue  under  the  rule  of  their  comiuerors.  It  was  an  affectionate 
and  earnest  epistle,  addressed  to  tlw^  directors  by  "their  honors'  loyal, 
sorrowful  and  desolate  subjects,"  concluding  in  these  words  :   "  Meau- 

Avhile,  since  we  have  no  longer  to  

depend  upon  your  lionors'  j^ower 
and  protection,  we,  with  all  the 
poor  sorrowing  and  abandoned 
commonalty  here,  must  lly  for 
refuge  to  the  Almighty  God,  not 
doubting  but  that  He  will  stand  by 
us  in  this  sorely  afflicting  con- 
junction. We  remain  your  sor- 
rowful and  abandoned  subjects. 
Done  at  .Torek,  (Yorlc)  heretofore 
named  Amsterdam,  in  New  Netherland, 
AVhen  the  time  arrived,  in  the  February  following,  for  choosing  new- 
magistrates,  great  reluctance  was  shown  to  take  the  oath  of  allegiance, 
Peter  Tenneman,  the  sellout,  positivtdy  refused,  and  departed  for  Hol- 
land. Allard  Anthony  was  chosen  in  his  place,  and  he,  with  the  other 
new  magistrates,  took  the  oath,  though  but  one  hundred  and  fifty  of 
the  inhabitants  could  be  prevailed  upon  to  do  so. 

New  York  remained  in  the  possession  of  the  English  for  nine  years, 
or  until  the  9th  of  August,  1G73,  when  it  was  retaken  by  the  Dutch. 
The  Dutch  occupation,  however,  was  not  of  long  continuance.  By  a 
treaty  signed  at  London,  the  States  General  relinquished  the  possession 
of  it  to  the  English.  On  the  31st  of  October,  1674,  it  was  fonnally  sur- 
rendered by  the  Dutch  governor  to  Sir  Edmund  Andrys  as  the  repre- 
sentative of  James  II.,  and  it  remained  a  British  province  until  the 
American  Revolution. 


THE  FIRST  WAREHOUSE. 


16th    of     Sept.,    1664.' 


,  of  N.  Y.  Burg,  mul  Sclu-pcu. 


34  HISTOEY   OF   THE   BENOIT    AXn   BAK    OF   XKW  TOEK 

Tit  o  V  w-^' B  oi:  cK 

PER50NEN 

^tadf  KewYorke 

FAC-SIMII.K,   llK^r  \\\r.v.  (W  MAUKIACK  AM>  IIAPTISMAI.  UKrnltHS,  ol.n  DUTCH  CHl-lirl.'. 


ENGLISH    COLONIAL    POLI'I'Y    AM)    .11  I)I(  LU. 
ADMINISTKAIION,    1()()1-177(). 

HE  first  c'oiistilutioii  of  New  York,  us  un  English  iJi-oviiice, 
consisted  of  (1)  the  Jju tent  of  Charles  II.  to  his  brother  the 
Duke  of  York,  dated  Mairh  12/22,  1G04  (that  is,  three 
months  before  the  expedition  for  the  snbjngation  of  New 
Nctherland  set  sail);  (2)  the  Duke's  com- 
mission to  Colonel  Richard  Nicolls,  as  his 
deputy  governor ;  (8)  Colonel  Nicolls' s 
proclamation  to  the  inhabitants  of  Long 
Island,  from  New  Utrecht  Bay,  dated 
August  18/28,  1604  ;  and  (4)  the  articles  of 
surrender  exchanged  eleven  days  there- 
after. The  hahendum  clause  of  the  patent 
is  the  same  as  in  all  the  colonial  patents. 
The    English  plantations  in  America  and 


SEAL  OF  THE  DUKE  OF  YORK. 

elsewhere  (including  the 
Channel  Islands  and  Ireland, 
as  a  conquest),  belonged  to 
the  king' s  private  domain  or 
demesne.  He  chose  to  con- 
sider all  his  American  pos- 
sessions as  attached  to  his 
own  Royal  Manor  of  East 
Greenwich,  in  the  county  of 
Kent.  Over  these  outlying 
acres  of  American  soil  he  ex- 
ercised entire  control,  like 
any  other  lord  of  a  manor, 
and  hence  could,  at  his  pleas- 
ure, devise  them  by  will,  or 
grant  them  by  deed. '  The 
rule  of  their  government  was 

was   taken  away  by  I  Anne,   c.  8,   passed  in 
William  III. 


DUTCH  COURTSHIP. 

1  The    right  to  alienate   crown  lands    by   grant   at  pleasure 
consequence  of  the  improvident  alienations  of   land   in  Ireland  by 

35 


36  HISTORY    OF   THE   BENCH   AND   BAE   OF   NEAV   YORK 

the  royal  prerogative,  except  as  it  was  expressly  limited  or  excluded 
by  the  terms  of  his  grant.  The  parliament  had  no  constitutional  right 
to  interfere ;  it  was  the  king  who  as  lord  paramount,  gave  political 
being  to  the  colony,  and  bestowed  such  rights,  or  imposed  such  burdens 
upon  its  inhabitants,  as  suited  him.  On  any  question  subsequently 
arising  the  patent  or  charter  was  the  touchstone  for  its  determination, 
and  popular  discussion  of  its  true  interpretation  became,  therefore,  a 
habit  of  the  people.  Americans  have  never,  from  the  first,  lived  under 
any  but  written  constitutions. 

1.  By  his  patent  to  the  Duke  of  York,  for  the  expressed  considera- 
tion of  40  beaver  skins  a  year,  the  king  surrendered  to  the  patentee  all 
his  royal  prerogatives,  including  the  making  of  laws,  which  "be  not 
contrary  to,  but,  as  near  as  conveniently  may  be,  agreeable  to  the  laws, 
statute  and  government  of  this  our  realm  of  England.'"  The  only  thing 
reserved  was  the  feudal  supremacy  of  the  crown,  and  "the  receiving, 
hearing  and  determining  of  the  appeal  and  appeals  of  all  or  any  person 
or  persons  of,  in  or  belonging  to  the  territories  or  islands  aforesaid,  in 
or  touching  any  judgment  or  sentence  to  be  there  made  or  given."  With 
this  mild  reservation,  there  was  given  to  "  our  dearest  brother  James, 
Duke  of  York,  his  heirs,  deputies,  agents,  commissioners  and  assigns, 
full,  absolute  power  and  authority  to  correct,  punish,  pardon,  govern 
and  rule"  the  inhabitants,  "  according  to  such  laws,  orders,  ordinances, 


CITV  HALL  AND  '  GREAT  DOCK,"  187» 


IIISI'OKV 


'III 


liiM  or  th.Mii  slmll  1 st:il)lisli.M|  ; 

^  good  (liscnition  of  his  (l('i)utys, 
IM'ctivfly  ;  ;i.s  well  in  cmhscs  and 
tcrs  cMpitiil  and  criniinal,  as  civil,  botli  inarinc  and  oIIht 
also  given  "to  ordain  and  establish  all  manner  (.f  onh 


directions  and  instrntnents  as  by 
in  defect  thereof,  according  to  tl 
niissioners,  ollicers  and  assigns  re 


insurrection  and  niutinv, 


(iiii- 
nat- 
I'ower  was 
laws,  direc- 
tions, instructions,  forms  and  ceremonies  of  government  and  magistracy, 
tit  and  necessary  for  and  concerning  the  government,"  also  "to  use  and 
exercise  martial  law  in  cases  of  reb(^llion, 
The  only  other  individual 
proprietary  of  an  American 
province,  at  that  time,  was 
Lord  Baltimore,  whose  pat- 
ent of  Maryland,  granted 
by  ('harles  I  (June  20, 1632), 
was  quite  as  liberal  in  its 
grant  of  powers,  but  in  the 
matter  of  legislation,  laws 
were  to  be  made  only  with 
the  assent  of  the  freemen 
of  the  province,  except  in 
cases  of  emergency,  and, 
then,  only  ordinances  not  impairing 
life,  limb  or  property. 

2.  The  Duke's  commission  to 
Richard  I^icolls,  Esquire,  whom  he 
appointed  his  deputy  governor   "to 

perform  and  execute  all  and  every  the  powers"  granted  by  the  patent 
was,  in  effect,  a  declai*ation  that  legislation  for  the  province  was  to  be 
by  ordinance,  and  not  by  statute.  But  the  proclamation  which  the 
Royal  Commissioners  (Nicolls,  Cartright  and  Cai-r)  issued  and  distri- 
buted from  New  Utrecht  Bay,  on  the  arrival  of  the  tleet,  always 
regarded  by  the  then  inhabitants  as  a  constitutional  guaranty,  had 
promised  all  those  submitting  to  his  Majesty's  government  the 
protection  of  his  laws  and  justice,  "and  all  other  privileges  with 
his  Majesty's  English  subjects."  As  it  was  the  privilege — a  palpable 
fiction,  nevertheless — of  all  Englishmen  everywhere,  to  participate 
in  the  making  of  their  own  laws,  notoriously  enjoyed  by  the  contem- 
porary colonists  of  New  England,  Maryland  and  Virginia — the  sub- 
sequent flagrant  violation  of  this  promise,  by  the  Duke  for  20  years  after 
the  occupation,  never  ceased  to  be  ground  of  more  or  less  bitter  complaint 
by  the  English  settlers  of  Long  Island  Avho  largely  outnumbered  the 
Dutch,  and  to  whom  the  j)roclamation  had  been  particularly  addressed.' 


EARLY  COMMERCE  ON  THE  HUDSON. 


•  The  Duke's  patent  is  said  to  have  been  drafted 
xmder  the  direction  of  Lord  Chancellor  Clarendon,  the 
Duke's  fathcr-in-la\y,  who  had  already  bought  out  the 
interest  of  Lord  Sterling,  under  whose  previous  grant 
the  greater  portion  of  Long  Island  had  been  settled  by 
English  subjects. 


2  In  October,  1669,  the  English  towns  of  Hempstead, 
Jamaica,  Oyster  Bay,  Flushing,  Newton,  Gravesend, 
West  Chester  and  East  Chester,  petitioning  for  redress, 
laid  stress  on  the  exclusion  of  the  people  from  any 
share  in  legislation,  the  right  to  w  hich  had  been  prom- 
ised them  by  the  proclamation. 


38 


HISTORY  OF  THE  BEN'CH  AND  BAU  OF  XEW  YOKK 


3.  To  the  non- English  inhabitants,  however,  the  constitutional  guar- 
anty of  chief  importance  was  the  stipulation  of  the  articles  of  capitu- 
lation (among   others)   that   "the  Dutch  here  shall  enjoy  their  own 

customs  concerning  their  inheritances  ; 
that  no  judgment  that  has  passed  any 
judicature  here  shall  be  called  in  ques- 
tion ;  that  all  inferior  civil  officers  and 
magistrates  shall  continue  as  now  they 
are  (if  they  please)  until  the  customary 
time  of  new  elections,  and  then  new  ones 
to  be  chosen  by  themselves,  provided 
such  new  chosen  magistrates  shall  take 
the  oath  of  allegiance  ;  and  that  all  dif- 
ferences of  contracts  and  bargains  made 
before  this  day,  by  any  in  this  country 
shall  be  determined  according  to  the 
manner  of  the  Dutch."  There  is  no 
reason  to  believe  that  these  guarantees 
were  ever  deliberately  repudiated  by  the 
the  contrary,  the  Dutch  law  continued  to  be 
and  in  the  Dutch  language,  in  certain 


SEAL  OF  NEW  YORK,  1686. 


Duke' s  government ;  on 
administered  by  Dutch  methods, 
of  the  purely  Dutch  towns  like  Albany  and  Esopus,  until  the  re-occupa- 
tion of  the  province  by  the  English  in  November,  1674,  after  its  re-con- 
quest, and  its  occupation  by  the  Dutch  since  August,  1673.  Holland's 
final  cession  of  the  province  by  the  treaty  of  Westminster  (Feb.  9/19, 
1674),  inasmuch  as  it  contained  no  express  reservation  in  favor  of  the 
guarantees  of  1664,  was  considered  to  have  annulled  them  ;  at  least  it  was 
so  considered  by  the  English  part  of  the  inhabitants,  and  the  provincial 
government  as  well ;  but  never  by  the  Dutch  of  that,  or  of  any  subse- 
quent, generation.  To  the  last,  they  claimed  the  right  of  free  trade 
with  Holland,  under  the  article  of  the  surrender,  "that  Dutch  vessels 
may  freely  come  hither,  and  any  of  the  Dutch  may  freely  return  home, 
or  send  any  sort  of  merchandise  home  in  vessels  of  their  own  country.'" 


>  So  late  as  1759,  Lieut.  Gov.  Cadwalladcr  Colden 
wrote:  "  The  Dutch  of  this  province,  it  is  probable, 
think  the  articles  of  surrender  are  still  in  force  and  that 
any  breach  of  them  is  a  piece  of  injustice  to  them,  and 
therefore,  among  other  things,  they  may  in  their  own 
minds  justify  themselves  in  carrying  on  the  illicit  trade 
with  Holland,  in  opposition  to  the  (British)  Laws  of 
Trade,  which  has  been  carried  on  from  New  York  for 
many  years."  lie  then  argues  against  any  such  assump 
tion  UV.  YHist.  So.  Pub.  (18C8),  108).  This  was  a  fruit- 
ful subject  for  liot  debate  in  the  province  for  many 
years.  On  November  i)th,  1074,  ^the  Duke's  deputy 
governor  confirmed,  by  proclamation,  "all  former 
grants,  privileges  and  all  estates  legally  possessed  by 
any  under  the  Duke  of  York,  before  the  late  (Dutch) 
government,"  which  the  Dutch  claimed  was  only  in 
accordance  with  the  law  of  pos(-liminy,  under  wliich 
the  intervening  conquest  operated  merely  to   suspend, 


not  to  extinguish  their  rights.  Per  contra,  it  was  argued 
that  there  had  been  no  conquest;  that  the  Dutch  ships 
had  no  thought  of  attempting  the  conquest  of  New 
York,  when  in  August,  1073,  they  came  in  under  Staten 
Island;  but  only  to  take  in  wood  and  water,  knowing 
that  there  was  not  sufficient  force  there  to  hinder  them, 
but  that  the  Dutch  inhabitants  treasonably  told  the 
Dutch  commodore  of  the  absence  of  the  Governor  and 
agreateri)art  of  the  garrison  up  the  river,  and  of  the 
defenceless  condition  of  the  city,  and  invited  him  to 
consent  to  takiMt,  which  he  did  without  firing  a  gun; 
that  having  voluntiirily  and  without  force  renounced 
their  allegiance  to  the  English  crown  and  submitted 
anew  to  Holland's,  "they  forfeited  without  doubt,  all 
privileges  that  they  could  claim  by  the  articles  of  eur- 
render."  (Colden.  IbUI,  184).  Smitli,  Uli^tmij  of  K.  r., 
111.,  IHM,  p.  01,  «.)  say.s  :  "  In  New  York,  the  right  of 
Itiisl-l'tiiniiij  was  disregarded  and  perhaps  unknown." 


AM)    llAi:  (>!•     N  i:\\     ^ 


'I'm,  .li  iM(  lAi,  Siwrrs  oi'  Niow  ^'<)l;K. 
But  tlio  jiulicial  status  of  New  \i>yk,  w  liilr  iiiidn-  the  Hiilisli  ciowu^ 
is  not  ilclt'rniincd  by  the  tcnus  of  llic  Dulcli  .surn-ncli-i',  nor  by  tlif  fact 
of  its  territory  bcin^  ceded  by  tiie  Dutch  governuuMit  to  the  I'ln^^lish 
king  by  the  two  successive  treaties  of  Brethi  (July  21/:il,  10(57)  and 
Westminster  (Feb.  0/10,  1074).  The  question  of  such  status,  under  the 
ruh'S  of  international  law,  involves  a  larger  survey  of  the  held  than  this; 
and  although,  after  vexing  our  courts  for  several  generations,  it  has 
probably  been  now  laid  to  rest  as  having  no  determining  value  in  the 
discussion  of  legal  rights  ;  yet,  as  it  nuist  always  arise  in  any  attemjit. 


E    •  J^■I,IvI^AlV  T)' 


A-^  %. 


IJTHE  duke's  pun'] 


XDi;5:CRIP'noN-  OFTHE 
:»v.TOA\'NE  OF  ALAXNADOS 
OHNEVV-.A>ISTF.I\DA.A  I 

<u  U-^/ao  t«  S,£h"<U  r  J06J  '^i  --• 


to 


TllsScjIf  of  JiueTioiitirW,  carj,-.  is  To,  .U'jou«  . 


PLAN  OF  NEW  AMSTERDAM  IN 


however  slight,  to  trace  the  history  of  our  jurisprudence,  a  brief  state- 
ment of  the  matter  is  pertinent. 

To  know  what  the  original  common  law  of  New  York  was,  and  to 
trace  its  development  to  the  present  time,  one  must  learn  what  changes 
have  taken  place  in  its  sovereignty  ;  so  that,  from  a  lawyer's  point  of 
view,  it  may  become  important  to  know  whether,  at  a  particular 
period,  the  seat  of  the  sovereignty  of  NeAv  York  was  in  London,  or  at 
the  Hague  ;  for,  by  an  ancient  fiction  of  law,  the  sovereign  is  regarded 
as  the  sole  owner  and  lord  paramount  of  all  the  land  of  his  kingdom  and 
its  dependencies,  individual  holders  taking  title  from  him,  though  no 
grant  of  his  is  i)i"ovable  by  any  record  or  otherwise ;  and  by  another 
conceit  of  jurists,  he  is  the  fountain  of  justice  and  the  author,  mediately 
or  immediately,  of  the  law  of  the  land,  so  that  no  law  or  ordinance,  as 
law,  can  obtain  in  any  part  of  his  dominions  without  his  consent,  express 


40 


HISTORY    OF   THE   BEXCH   AND   BAR   OF   >'EW   YORK 


or  implied.  The  ultimate  sovereignty  of  this  territory  had  been  claimed 
by  Great  Britain,  France,  and  by  the  United  Provinces  of  the 
Netherlands.  The  French  king  founded  his  title  to  northern  New  York 
on  the  fact  that  his  subjects  had,  first  of  Europeans,  ascended  the 
St.  Lawrence  and  its  tributaries,  including  Lake  Champlain,  and  had 
explored  and  occupied  their  shores.  In  like  manner,  the  Netherlands 
claimed  all  the  country  lying  between  the  Connecticut  and  Delaware 
Rivers,  and  the  lands  drained  by  them,  upon  the  alleged  fact  of  their 
having  been  the  first  of  Europeans  to  ascend  these  rivers,  and  others  in- 
termediate from  the  sea,  and  to  explore  and  settle  their  shores.  On  the 
other  hand,  the  English  king  s  title  was  based  on  the  ultimate  fact  of 
Cabot' s  discovery  of 


GREAT  SEAL  OF  : 


the  continent,  in 
mission  of  Henry 
due  time,  by  actual 
ferent  points  on  the 
subjects,  under 
in  i^oint  of  time  to 
contiguou  s  territory 
were  consequently 
interlopers,  tres- 
ters  by  the  English 
and  Virginia,  be- 
had  wedged  them- 
government  hadpro- 
ernment  at  the 
^lish  territory  from 


1497,  under  the  com- 

VII.,   followed,    in 

occupation  at    dif- 

sea'coast  by  English 

crown  grants,  prior 

any   occupation    of 

by  the  Dutch,  who 

regarded    as    mere 

passers  and  squat- 

of     New     England 

tween    whom    they 

selves.  The  English 

tested  to  the    gov- 

Hague  against  this   unwarranted   invasion   of  Ent 

time  to  time,  both   under  the  monarchy  and   the  commonwealth,  ever 

since  the  year  1614,  but  for  one  reason  or  another,  easily  comprehended 

when  the  domestic  history  of  England  for  the  first  half  of  that  century 

is  considered,  had  not  found  it  convenient  or  politic  to  vindicate  the 

British  title  until  1664,  shortly  after  the  restoration  of  the  monarchy. 

According  to  a  contemporary  historian,  "there  is  nothing  more 
perplexing  than  the  delicate  relations,  in  history,  of  cause  and  effect, 
whether  in  the  event,  or  in  the  recorders  of  them.  There  seems  to  be 
nothing  to  check  dependent  progress,  if  we  travel  back  over  the  annals 
of  the  world.  Who  would  have  thought  that  when  Henry  VII.  of  Eng- 
land gave  to  the  Venetian,  John  Cabot,  and  his  three  sons,  the  right  to 
discover  western  lands,  he  would  have  determined  the  fact  of  the  fee 
of  the  road- way  of  the  New  York  Bowery,  as  really  happened  the  other 
day? '"  Such  is  not  quite  the  fact ;  but  the  records  of  our  courts,  both 
of  the  province  and  of  the  state,  abound  with  cases  calling  for  the  judi- 
cial determination  of  property  rights  of  great  value,  not  only  in  high- 
ways, in  rivers  and  streams,  but  inheritances,  which  were  supposed  to 
depend  upon  whether  the  Dutch  government  was  ever  vested  with  the 
territorial  sovereignty  of  this  state,  as  against  England,  and,  therefore, 

>  Justin  Winsor,  "The  Perils  of  Uietoriciil  Narrative,"  the  Atlantic  Monthly,  September,  1890. 


IIISI'(H;v    (.!•     IHK    ItKNCir    AM)    HA  K    OK    \  I  \\      V(.|; 


THE 

LAWS  &  ACTS 


OF    THE 


i§tmul  affemWp 

FOR 

Their  Majefties  Province 

NEW-YORK, 

As  they  were  Enafted  in  divers  Scffions,  thefirftof 

which  begaa  Aprily  the  9th,  Annoq-,  Pommi, 

I  691. 


^  ^  (Cii «» t'io  t*  3:  &i 
.*  '5-  .* 


At  'NeW'Torfi, 

Prlnteciand  Sold  by  WiHUm  Bradford,  Printer,  to  their  Majefties,  Ki 
William  &  QiKXQ&nMMry,   j  6  ^'4. 


FUDM  COPY  IN  SOCIETY  LIBR.\RY. 


42 


HISTORY    OF   THE   BENCH   AND   BAll   OF   NEAV    YORK 


whether  the  laws  and  ordinances  of  that  government,  promulgated  here 
during  its  forty  years  of  occupation,  ever  had  any  force  and  validity  as 
law,  and  so,  surviving  the  English  occupation  of  1664,  still  control  the 
use  and  enjoyment  of  those  rights.  In  examining  these  records,  one 
knows  not  which  to  admire  most,  the  persistent  efforts  of  successive 
generations  of  lawyers  to  convince  the  court  that  the  matter  at  bar  Avas 
governed  by  the  Dutch  and  not  the  English  law,  or  vice  versa,  because  the 
one  or  the  other  was  the  law  of  the  sovereign  of  the  land  when  the 
particular  right  arose — or  the  ingenuity  of  the  judges,  who,  generally 
speaking,  have  succeeded  in  dodging  the  question  by  finding  some  less 
interesting  and  quite  common-place  solution  of  the  controversy.     At 


> 


IS 

4 

■'V'  V 

i 

J  TAf   ^i,re^ 

6  Tie  FiayiCuJ-f  an^  Jlf^jti 

SI  n.  IK:'/  u,  /k^  /„rc 


rh^   Sor/  oa/t 


PLAN  OF  FOUT,  1695. 


bottom,  these  forensic  contests  are  attempts  to  establish  what  was  the 
original  common  law  of  New  York  ; — was  it  the  common  law,  and  ap- 
plicable statutes,  of  England,  existing  in  England  at  tlie  time  of  the 
occupation  in  1664,  or  was  it  sometliingmore  or  dilVeient  ?  If  the  reduc- 
tion of  the  Dut(^h  was  a  conquest,  and  E^ngland  took  "  title  by  conquest," 
as  understood  by  the  law  of  nations,  Avhich  is  a  i)art  of  Anglo-American 
common  law,  the  change  of  sovereigns  from  Dutch  to  English  did  not, 
ipso  facto,  change  the  system  of  law  theretofore  established,  or  affect 
existing  property  rights  oi-  incidents  of  tenure,  but  tlu^  same  reuuiined 
after  the  conquest,   and    inmcd   lo  ilie  benefit  of   every    successor   in 


ilisi'oKv   iii''iiiK   m.\(  II    A.M>   i;ai;  m'   m:\v    v<)i;k  |:{ 

ililfivsl of  111.' <)iii;in;il  Diilrli  .;i;iiit.'c,  ii ii Irss expn'ssly  j|l)i'oi,r;,i,.,l  hylln' 
(•(nuiueror.  On  theotlicr  luuid,  if  ilic  hini^Iisli  niililary  expedition, 
which  ('()nii)elle(l  tht*  isurnMKh'r  of  the  Diilcli  in-ovincc  and  the  .siil)riiis- 
siou  of  its  inliabitants  to  the  sovei-ei<;iity  of  (ireat  Hiitian,  did  notelfecrt 
"a  conciuest,"  but,  at  most,  a  forcible  entry  upon  liei-  own  tei-ritory,  in 
vindication  of  her  own  anterior  title  and  soverei<^nty,  as  well  founded 
as  her  title  and  sovereignty  to  Massachusetts  or  Virginia,  then  the 
Dutch  law,  ordinances  and  (Mistonis  never  had  any  validity,  r/.v  hiio,  and 
ceased,  instanter,  on  the  entry  of  tlie  English.  So,  too,  if  the  king's 
original  right  of  pre-enii)tion  in  the  soil  be  conceded,  his  deed  of  con- 
veyance, before  actual  entry,  was  good  in  law^,  and  the  Duke  acquired 
a  perf(H't  title. 

As  to  the  effect  of  the  English  occupation,  ipso  facto^  to  displace 
Dutch  law  existing  here,  by  introducing  English  law,  it  is  to  be  borne  in 
mind  that,  up  to  this  time,  all  of  England's  colonies  originated  in  immigra- 
tion ;  not  one  of  them  was  acquired  by  coiupiest,  with  the  doubtful 
exception  of  the  Spanish  island  of  Jamaica.  In  all  her  long  subsequent 
career  of  concpiering  and  annexing  French,  Spanish,  Portuguese  and 
Dutch  colonies,  in  all  quarters  of  the  globe,  she  left  them  their  own  laws 
intact.  Hence,  in  Guiana,  in  the  Cape  of  Good  Hope,  and  in  Ceylon, 
each  afterwards  acquired  by  conquest  from  the  United  Netherlands,  the 
Koman-Dutch  law,  as  it  prevailed  in  Holland,  at  the  time  they  were 
respectively  conquered,  is  still  at  the  bottom  of  their  jurisprudence. 
But  in  the  case  of  New  York,  that  law,  except  as  the  articles  of  sur- 
render expressly  allowed  it  to  survive  in  certain  particulars,  was  never 
recognized  by  any  English  or  provincial  court,  or  by  crown  lawyers,  as 
having  any  operation  here,  as  law,  after  the  surrender,  or  as  governing 
any  of  the  incidents  of  land  tenure  acquired  in  the  province  before  that 
date.  Ever  since  then,  both  before  and  after  the  Revolution,  the  courts 
of  this  state  appear  to  have  ignored  the  fact  of  the  Dutch  occupation, 
or,  Avhen  called  on  to  consider  the  legal  consequents  of  that  occuj)ation 
upon  our  jurisprudence,  have  hopelessly  divided  on  the  question, 
whether  New  York  was  to  be  considered,  in  law,  as  acquired  by  con- 
quest, or  on  the  other  hand,  was,  like  Massachusetts  or  Virginia,  an 
English  possession  by  original  right,  into  which  the  common  law  and 
the  statutes  of  the  realm  then  in  force,  so  far  as  they  were  applicable 
to  the  condition  of  the  j'l'ovince,  follow^ed  the  surrender  as  certainly  as 
they  followed  the  first  settlement  of  the  other  English  colonies  to  the 
east  and  south  of  it.  The  difference  between  a  conquered  or  ceded 
territory,  and  a  plantation  made  by  immigration  and  settlement,  on  a 
previously  uninhabited  territory,  or  only  inhabited  by  aborigines,  is  an 
important  factor  in  determining  the  question,  in  English  jurisprudence, 
of  what  law^  governs  the  one  or  the  other.  As  to  the  original  right  of 
England,  to  what  is  now  New  York,  as  against  the  Netherlands,  on  the 
one  hand,  and  France,  on  the  other,  diverse  opinions  have  been  ex- 
pressed by  judges,  law-writers  and  historians,  which  the  curious  in  such 


44  HISTORY   OF  THE    BENC'H    AXl)    BAK    OF   NEW    YORK 

Studies  may  find  interesting,  but  wliicli   the  space  at  command  here 
does  not  admit  of  being  even  cursorily  considered.' 

The  Hempstead  Conventiox,  and  the  Nicolls  Code. 
All  writers  agree  that  in  settling  the  first  government  of  New  York, 
a  task  requiring,  under  the  circumstances,  no  mean  abilities.  Colonel 
Nicolls  showed  a  wise  reluctance  to  interfere  with  the  Dutch  administra- 
tion he  found  in  efficient  operation  here.  The  authorities  of  the  Dutch 
towns,  such  as  Beaverwyck,  Rennsselaerwyck  and  Esopus,  on  the  upper 
Hudson,  and  of  New  Amsterdam  and  the  purely  Dutch  towns  in  what 
is  now  Kings  County,  continued  to  administer  their  small  affairs,  and  to 
distribute  justice,  in  their  own  way.  The  really  restive  and  even  sedi- 
tious towns  were  those  of  a  mixed  population  which  had  been  founded 
by  New  Englanders  in  the  times  of  Kieft  and  Stuyvesant,  such  as  New- 
town, Flushing,  Hempstead,  New  Utrecht  and  Jamaica,  and  West 
Chester  and  East  Chester,  but  more  especially  the  purely  English  towns, 
in  what  is  now  Suffolk  County,  never  under  Dutch  government,  but 
settled  under  the  jurisdiction  of  Connecticut,  except  Southold,  the 
oldest  town  on  the  island,  which  liad  elected  to  belong  to  the  jurisdic- 
tion of  the  New  Haven  colony.  These  militant  towns,  which  had  turned 
out  an  armed  force  to  assist  in  the  subjugation  of  New  Amsterdam,  in 
response  to  the  royal  proclamation,  on  the  arrival  of  the  fleet,  were  by 
no  means  satisfied  to  lose  their  connection  with  Connecticut,  with  whose 
religion  and  system  of  government  they  were  in  complete  sympatliy. 
Nicolls  had  promised  them,  two  days  after  the  surrender,  that  "  Depu- 
tys  shall  in  convenient  time  and  place  be  summoned  to  propose  and  give 
their  advice  in  all  matters  tending  to  ye  peace  and  benefit  of  Long 
Island."  Accordingly  on  March  1/11,  1065,  a  convention  of  two  dele- 
gates from  each  of  the  sixteen  towns  on  Long  Island  and  from  the  town 
of  Westchester,  on  the  mainland,  was  convened  at  Hem})stead,  to  whom 
the  deputy-governor  submitted  a  code  of  laws,  since  called  the  Duke's 
laws.  That  part  of  it  dealing  with  capital  offences  was  palpably  adopted 
from  the  Mosaic  Code  of  Connecticut,  the  only  difference  being  in  drop- 
ping the  scripture  wording  and  the  bible-texts  cited  in  the  original. 
The  record  of  only  one  of  the  two  or  three  days'  session  survives,  but  it 
is  pretty  certain  the  delegates  were  expected  to  accept  without  debate 
the  decree  of  the  Duke's  dej^uty,  though  it  is  said  that  some  changes 
were  suggested  and  accepted  as  to  j)articular  provisions.     The  conven- 

'  Mr.  Robert  Ludlow  Fowler,  of  our  bar,  has  eluci-  juridical  history.    The  question  of  the  validity  of  the 

dated  this  question,  and  has  given  an  account  of  its  grants  of  vast  tracts  of  land  on  both  sides  of  Lake 

progress  through  our  courts,  as  no  one  else  has,  or  per-  Champlain,  made  by  the  French  provincial  government 

haps  could,  with  equal  force,  in  a  series  of  articles  on  at  Quebec,  provoked  vehement  discussion  In  the  New 

the  "Organization  of  the  Supreme  Court"  vol.  xix.  of  the  York  Assembly  in  1T73,  when  it  published  a  vindication 

Albanij  Law  Jmrnal.     "His  History  of  Real  Property  of  the  British  title,  as  founded  on  "original  right,"  by 

in  New  York,"  his  introduction  to  the  Grolier  Club's  virtue  of  Cabot's  discovery,  and  not  by  conquest.    Tlic 

publication  of  "Bradford's  Laws,"  and  his  chapters  on  qucslion  was  argued  before  Kent  C'h.  ,7.,  in  .Jackson  ,.r 

the  Constitutional  History  of  the  State,  contributed  to  (/</«.  Wiulhrop  v.  lugrabaui  4  Johns.  103,  but  the  judg- 

the  "Memorial  History  of  New  York,"  are  of  the  llrst  ment  i)rocccded  on  other  grounds, 
importance  to   any  intelligent    understanding  of  our 


iiivioin    <>i-   iiii:  ni;N<  II   ami  i-.m:  (»i    m.\s    ^l>l:K  \'> 

lion  \v;is  :i  iiu'iv  prclciisc  of  ])(»iiiil:ir  |i;ii-1  ici|i:it  imi  in  li-^isl;il  ion.  ;iii<l 
(l('(H'iv(>(l  no  one.  It  innciy  fsfi-vcd  ns  iiii  occnsion  to  protnulLcnl"' 1  In- 
proprictiiry's  will.  Afii-r  siiiiiini;  :i  hypocritical  addicss  to  His  Royal 
IIi<;liiies,s,  in  which  tlicir  "  chccifiil  snlunis.sion  toall  such  laws,  staliilcs 
and  ordinances  which  arc,  or  sliail  he,  made  by  virtue  of  his  authority" 
was  declared,  the  delegates  adjourned  without  day,  to  meet,  on  re- 
turning to  their  constituents,  an  exceediiii^ly  uncomfortable  reception.' 
Although  neither  New  York,  Albany,  or  E.sojms  (  Kingston  )  was  i-epre- 
sented  at  nein])stead,  for  the  reason,  perhaps,  that  it  was  only  intended 
for  the  towns  on  Long  Island  and  West(^hester,  where  the  English 
liredoniinated,  this  code  came  into  operation  in  time  throughout  the 
j)rovince.  The  alphabeti(^al  arrangement  of  its  subjects  and  their  treat- 
ment clearly  indicate  that  its  compiler  was  assisted  by  some  one  who 
was  familiar  with  contemporary  New  England  (!odes,  as  well  as  with 
the  general  features  of  Dutch  administration  and  judicial  methods, — 
j^articnlarly  compulsory  arbitration  ( or  references) — a  practice  which, 
in  some  form  or  other,  lias  been  a  characteristic  of  New  York  procedure 
ever  since.  Thiscode,  along  with  additions  made  to  it  from  time  to  time 
for  the  next  twenty-five  or  twenty-six  years,  were  declared  "null  and 
void  and  of  no  effect  nor  force,  in  this  province"  by  the  first  general 
assembly  after  the  revolution  of  1688,  as  being  "contrary  to  the  con- 
stituticm  of  England,  and  the  practice  of  the  government  of  their 
majesties  other  i)laiitations  in  America."  Our  tirst  historian,  waiting 
about  IT;")?,  says  that  all  "laws  made  here  antecedent  to  this  period 
(1001)  are  disregarded  both  by  the  legislature  and  the  courts  of  law  ; 
the  validity  of  the  old  grants  of  the  powers  of  government,  in  several 
American  Colonies,  is  very  much  doubted  in  this  province."'  But  it 
was  never  doubted  in  England.  While  general  legislative  power  /or 
England  Avas  never  claimed  by  any  of  her  sovereigns,  it  was  never 
doubted  that  the  crown  possessed  this  high  prerogative  power  over  the 
colonies,  and  that  this  powder  was  communicable  to  a  subject.  In  New 
York,  the  Duke  of  York's  deputy -governor  might,  as  he  did,  declare 
that  "  no  jury  shall  exceed  the  number  of  seven,  nor  be  under  six,  unless 
in  special  causes  upon  Life  and  Death,  the  justices  shall  think  fit  to 
appoint  twelve," — the  verdict,  in  civil  cases,  to  be  by  a  majority  vote 
and  perjury  to  be  capital  felony  in  certain  cases.  But  in  England,  we 
are  told,  "  the  most  violent  and  imperious  Plantagenet  never  fancied 
himself  competent  to  enact,  without  the  consent  of  his  great  council, 

>  In  October,  1666,  an  ordinance  was  recorded  by  the  Eastchester,  on  the  mainland.petitioned  for  an  assembly 
Court  of  Assize  "that  wliosoever  hereafter  shall  any  of  delegates  to  aavise  about  and  approve  laws  "  with  ye 
ways  detract  or  speak  against  any  of  the  ili  piities  sign-  Governor  and  his  Council  as  may  be  for  ye  good  and 
ing  the  address  to  his  Royal  Hiirlim  s-.  at  ihi  Lriiicral  benefit  of  ye  common  wealth,"  according  to  the  promise 
meeting  at  Ilempstead,  they  shall  lu  iin-rnti  il  lo  the  made  by  Governor  Nicolls  and  the  rest  of  the  royal 
next  court  of  sessions,  and  if  the  justices  .-liall  <cc  cause,  commissioners.  For  answer,  they  were  told  that  "it 
they  shall  from  thence  be  bound  over  to  the  assizes,  doth  not  appear  that  Col.  Nicolls  made  any  such  prom- 
there  to  answ^er  for  the  slander  upon  plaint  or  iuforma-  ise,"  and  moreover  the  governor's  instructions  forbade 
tion."  In  November,  1669,  under  the  governorship  of  his  making  any  alterations  in  "ye  Lawes  of  ye  govern- 
Nicolls's  successor,  Francis  Lovelace,  the  English  to\vn8  ment  settled  before  his  arrival." 
on  Long  Island  and    the  t()«  ns  of  Westchester  and  »  Smith,  "History  of  New  York,"  134,  note. 


46         HISTOKY  OF  THE  BENCH  AND  BAK  OF  NEU^  YOKK 

that  a  jury  could  consist  of  ten  persons,  instead  of  twelve,  that  a 
widow's  dow'er  should  be  a  fourth,  instead  of  a  third,  that  perjury 
should  be  a  felony,  or  that  the  custom  of  gavelkind  should  be  intro- 
duced into  Yorkshire.'" 

NicoLLs's  Judicial  Organization. 

The  only  part  of  the  scheme  of  laws  promulgated  by  the  Duke's 
f^eputy  at  Hempstead  which  can  be  given  here  is  that  establishing  a 
judicial  organization  for  the  new  government.  A  tow'u  court  was  estab- 
lished for  each  towoi,  composed  of  a  constable  and  two  overseers,  who 
might  be  assisted  by  a  justice,  having  jurisdiction  of  civil  actions  under 
£5  ;  also  a  court  of  sessions  for  each  of  the  three  ridings  (into  w^hich 
Long  Island  and  the  two  towns  of  Westchester  and  Eastchester  Avere 
divided)  to  be  held  twice  a  year,  composed  of  justices  of  the  peace, 
having  cognizance  of  all  criminal  cases  and  of  all  civil  cases  over  £5 ; 
its  judgments  for  sums  under  £20  being  final.  Judgments  over  that 
amount  were  appealable  to  a  general  court  of  assize,  which  w^as  conj- 
posed  of  the  governor,  his  council,  and  the  magistrates  of  the  several 
towns,  convening  in  the  City  of  New  York.  This  high  court  had 
original  jurisdiction  of  all  criminal  prosecutions,  and  of  civil  actions  for 
the  recovery  of  more  than  £20,  and  was  the  final  court  of  appeal,  except 
as  it  permitted  a  further  api^eal  to  the  crown.  It  was,  also,  made  a 
vehicle,  a  veritable  lit  de  justice — for  promulgating  and  recording  the 
ordinances  of  the  Duke  and  his  council  in  England,  and  those  of  his 
deputy  and  council  here.  Its  territorial  jurisdiction  was  as  extensive 
as  the  Duke' s  possessions,  and  therefore  included  the  Pemaquid  country 
(between  the  Saint  Croix  and  the  Kennebec,  in  Maine),  Martha' s  Vine- 
yard, Nantucket,  Fisher's  and  Gardiner' s  Islands,  some  of  the  towms 
now  in  Connecticut,  New  Amstel,  now  Newcastle,  in  Delaware,  and,  for 
a  portion  of  its  history.  New  Jersey,  besides  of  course,  New  York 
proper  as  far  north  and  west  as  Schenectady. 

New  York  City  Municipal  Court. 

In  June  following  the  promulgation  of  his  code  of  laws,  Nicolls 
set  about  to  reorganize  the  Burgomasters  and  Scheppens'  Court,  the 
municipal  court  of  New  York  City.  He  issued  a  proclamation  (June 
12/22,  1665),  in  which,  after  reciting  his  commission  and  authority,  and 
that,  upon  mature  deliberation  and  advice,  he  had  thought  it  necessary 
to  "revoke  and  discharge  the  form  and  ceremony  of  this  government  of 
this  his  Majestie's  town  of  New  York,  under  the  name  or  names,  style 
or  styles  of  Scout,  Burgomaster  and  Scheppens,"  he  so  declared  tliem 
revoked  and  dis(^harged.  And  then,  "  for  the  future  administration  of 
justice,  by  the  laws  established  in  these  the  territorys  of  his  Royal 

>  Macaulay,  "History  of  England,"  i.,  35.    But  Lord  acquired  by  conquest  or  cession,  was  absolute,  and  not 

Manstield,  tliough  liuown  to  liave  highly  rated  the  royal  merely  arbitrary.     (Campbell  v.  Hall,  Cowp.  ^'09;    ^0 

prerogative,  discountenanced  the  idea  that  tlie  crown's  Uowell's  St.    Trials,  323.) 
power  of  legislating  for  the  colonies,  especially  those 


I!|:N(    II     AN  I)     I! A  i;    Ol'     N  IW    'i 


SEVERAL 

L  A   W  S^ 

Orders  &  Ordinances 

Eftablifhed    by    the 

MAYOR. 

Recorder,     Alder-men    and  Afriftants 

O  F     T   H  E 

Cttp  of  j^eiD-go;k, 

Conven'd  in  Common- Council , 

For  the  good  Rule  and  Government  of  the  Inhabi- 
tants of  the  faid  City.     And  publiflied  this  28th  Day  of 
March-,  in  the  Mayoralty  of  Willi jm  Pcartrec,  Efg- 

Anno  Domini    1  7  O  7 


Printed  and  Sold  by  Williavi  Bradford  ar  the  Sign  of  the  Bible  m 
the  City  of  New.York,    1707. 


FROM  Cnl'Y  IX  LENOX  LIBRARY. 


48  HISTORY   OF   THE   BENCH    AXD   BAlt    OF    XEAV   YOUK 

Highness,  wherein  the  welfare  of  all  the  inhabitants,  and  the  preserva- 
tion of  all  their  rights  and  privileges  granted  by  the  articles  of  this 
town  upon  surrender  under  his  Majestie's  obedience  are  concluded,"'  he 
declared  "that  by  a  particular  commission  such  persons  shall  be  author- 
ized to  put  the  laws  in  execution  in  whose  abilities,  prudence  and  good 
affections  to  his  Majestie's  service  and  peace  and  happiness  of  this  gov- 
ernment, I  have  especial  reason  to  put  conlidence  in,  which  persons  so 
constituted  and  appointed  shall  be  known  and  called  by  the  name  and 
style  of  Major  (Mayor),  Aldermen  and  Sheriffs,  according  to  the  custom 
of  England  in  other  his  Majestie's  corporations.'" 

On  the  same  day,  an  ordinance  was  issued  which,  after  reciting 
that  it  had  been  found  necessary  "to  discharge  the  form  of  government 
late  in  practice  *  *  *  to  the  end  that  the  course  of  justice  for 
the  future  may  be  loyally,  equally  and  impartially  administered  to  all 
his  Majesty's  subjects  as  were  inhabitants  as  strangers,"  the  inhabi- 
tants of  Manhattan  Island  were  declared  to  be  forever  accounted, 
nominated  and  established  as  one  body  politique  and  corporate,  under 
the  government  of  a  mayor,  aldermen  and  sheriff.'"''  For  the  first  year, 
Thomas  Willet  Avas  api)ointed  to  be  Mayor,  Thomas  Delavall,  Olaffe 
Stuyvesant,  John  Brugges  (or  Johannes  Van  Burgli)  Cornelius  Van 
Ruyven  and  John  Lawrence  (or  John  Laurens)  to  be  aldermen,  and 
Allard  Anthony  (the  last  Dutch  sellout)  to  be  sheriff.  To  the  mayor 
and  aldermen  or  any  four  of  them,  full  power  and  authority  Avere  given 
to  rule  and  govern  "according  to  the  general  laws  of  the  government 
and  such  peculiar  laws  as  are  or  shall  be  thought  convenient  and  neces- 
sary for  the  good  and  welfare"  of  the  corporation;  and  to  appoint  other 
officers  "for  the  orderly  execution  of  justice.""' 

Three  days  after  receiving  their  commissions,  these  gentlemen  met 
at  the  Stadt  Huy s,  and  organized  as  a  court,  called  the  Mayor' s  Court, 
which  continued  under  that  name  for  a  hundred  and  fifty-six  years, 
when  its  jurisdiction  was  transferred  to  other  tribunals.  The  Mayor's 
Court  was  the  court  of  sessions  for  the  city,  as  the  justices  of  the  peace 
of  the  country  towns  composed  their  sessions  court.  The  records  were 
directed  to  be  kept  in  Dutch  and  English ;  the  secretary  of  the  old 
court,  Johannes  Nevius,  was  retained,  and,  with  the  exception  of  intro- 
ducing jury  trials,  unknown  to  Dutch  procedure,  there  was  no  change 
in  the  method  of  doing  business.  They  first  met  for  the  trial  of  civil 
causes  on  June  27,  1G65,  when  a  jury  was  impaneled  (without  d(mbt 
the  first  in  New  York  county )  in  the  case  of  Francis  Douty  (  Doughty) 

'  Gen.  Ent.  i.,  120-121.  letters  patent  and  grants  and  confirmations  not  only  of 

»  This  is  not  to  be  taljen  as  tlie  first  charter  of  incor-  divers  governors  and  commanders  in  chief  of  tlie  Nether 

poration  of  tlie  city.    It  was  first  fully  incorporated  as  a  Dutch  Nation,  while  the  same  were  under  their  power 

city  with  power  to  levy  taxes  for  its  own  support,  in  and  subjection,"  were  recited  and  confirmed.  New  York 

May,  1054,  under  the  Dutch  regime,  and  was  recognized  City  is  consequently  the  oldest  municipal  corporation 

as  a  corjjorate  city  by  Governor  Dongan's  charter  of  in  the  X'nited  States. 

1680,  in  which  all  its  "rights,  liberties,  privileges,  emol-  '  Gen.  Eut.,  i,  132-183. 
nments,  etc.,  as  well  by  prescription  as  by  charter, 


IIISTOKV    (II'    llll':    ItKNclI    .\M>    l!\i:    i)|'    \|;\v    VoKK  4!) 

:i<;-:iiiisl  .loliii  ll:ii\m:iii  :iii<l  Kliclliiin  Wiiislow.  Tli.-  r.-conl,  wliirli  is 
briof,  may  l)(*  worth  transci-ibiiii;-,  if  Idi-  iio  other  rrason  Ihaii  it  shows 
an  instance  of  a,  compulsory  refcrcnct'  of  a,  part  of  lh«nssues,  a  common 
enoiigli  i)roce(lin(^  nn(N>r  the  Dutch  riih",  but  ])ia('f  ically  unknown  in 
Eiiiilish  i)roce(lure.  The  ju(l<i;ment  (  which  is  the  only  indication  th(^ 
record  g-ives  of  the  nature  of  the  action  )  was  as  follows  :  "  The  Court 
dothoi'der  tliat  tlie  i)artyes  shall  deliver  in  their  evidence  to  the  follow- 
ing juries,  to  wit:  Caleb  Jiurton,  Isaacy  liedow,  Christ.  Iloogland, 
Balek  de  Iljcrt,  Wm.  Dornel,  James  Ba'llaine,  John  Garland,  .John 
Browne,  Charles  ]?ridges,  John  Dawrel,  Thos.  Cai-vet,  Samuel  Edsal. 
The  juries  doe  judge  that  the  defendants  shall  i)ay  the  plaintiff  soo 
much  as  he  shall  appeare  by  true  accounts  due  unto  him  from  the 
defenders,  besides  the  costs  and  damages  of  the  Court.  The  Honable 
Court  does  allowe  off  the  above  sd  Judgment,  and  Nominates  for  to 
view,  examine  and  make  np  the  accounts  betwixt  the  j)artyes  from  the 
tyme  that  the  Bark  was  sould  to  Mr.  Tatcher  til  the  time  that  she  was 
returned  again  to  the  said  Pouty,  to  wit :  William  Jacob  Backer, 
"William  Isaacy  Bedloo,  William  Balthazar  De  Hjert  and  Mr.  Samuel 
Edsal"  (two  of  the  jurjonenand  two  outsiders).' 

The  General  Court  of  Assize,  1605-1683. 

The  first  session  of  the  General  Court  of  Assize  convened  at  the  Fort, 
in  New  Yorlv,  on  the  last  Thursday  (the  28th)  of  September,  1665,  and 
adjourned  the  4tli  of  October.  By  its  constitution,  it  was  composed  of 
the  governor  and  his  council,  and  two  justices  of  the  peace  of  the  three 
several  precincts,  or  ridings,  who  held  courts  of  sessions  for  the  towms 
or  villages  included  in  them  respectively.  But  the  records  do  not  show 
any  general  attendance  by  justices  from  a  distance,  and  their  attendance 
ai)pears  to  have  been  optional,  or  subject  to  the  summons  of  the  gover- 
nor. Whenever,  on  the  information  of  an  aggrieved  person,  the 
governor  was  satisfied  of  the  necessity  of  having  justice  done,  before  the 
next  annual  meeting  of  the  court,  he  issued  a  warrant  for  a  special 
session  to  try  the  cause  ;  or,  on  an  information  exhibited  to  him  of  a 
public  offense,  like  a  violation  of  the  navigation  laws,  or  a  capital  crime 
certified  to  him  by  the  court  of  sessions,  he  issued  a  commission  (gen- 
erally addressed  to  the  mayor  and  aldermen)  for  a  court  of  Oyer  and 
Teraiiner  to  try  the  offender,  where  more  than  two  months  would  elapse 
before  the  next  session  of  the  Court  of  Assize.  There  are  extant  but 
two  volumes  of  the  records  of  the  Court  of  Assize,  one  covering  the 
period  from  September  28,  1665,  to  December  7,  1672,  Avhicli  is  in  the 
State  Library  at  Albany;  the  other  for  the  period  from  October  6,  1680, 
to  October  6,  1683,  is  in  the  library  of  the  New  York  Historical  Society, 

•  Clork  Joliannes  Nevius'  English  is  as  yet  imperfect.    The  curious  reader  will  find  several  excerpts  from  the 
Records  of  this  Court  in  Valentine's  Manual  for  185?,  p.  483,  et  seq. 


50  HISTORY    OF   THE  BENCH    AND    BAR    OF    NEAV    YORK  . 

both  in  a  good  state  of  preservation. '  Tlie  earlier  records  are  in  the 
clerkly"  handwriting  of  Mathias  Nicolls,  a  namesake,  and  perhaps  a 
relative,  of  Colonel  Nicolls,  with  Avhom  he  came  ont,  and  who  appointed 
him  a  member  of  his  council,  and  secretary  of  the  province.  As  secre- 
tary, he  was,  ex  officio,  clerk  of  the  court.  By  virtue  of  his  office,  he 
was  entitled  to  sit  in  courts  of  sessions  in  the  several  ridings,  and  fre- 
quently did  so  in  Queens  County,  where  he  was  a  large  land  owner. 
He  was  mayor  of  New  York  in  1G72,  speaker  of  Dongan's  assembly  of 
1683,  and  was  on  a  commission  of  Oyer  and  Terminer,  the  same  year. 
He  was  a  barrister  of  Lincoln's  Inn,  a  man  of  character  and  capacity, 
and  was  highly  esteemed.  He  is  supposed  to  have  died  about  1690. 
The  records  of  this  interesting  tribunal,  with  a  territorial  jurisdiction 
reaching  to  Pemaquid,  in  Maine,  on  the  east,  and  to  Newcastle,  on 
the  Delaware,  on  the  south,'  have  deserved  a  better  fate  than  has 
attended  them.  The  record  of  its  session  held  in  New  York,  October  6, 
1680,  gives  the  names  of  the  members  of  the  court,  as  then  present,  "the 
Right,  Hon.  Sir  Edmund  Andross,  Governor,"  and  his  council, five  in  num- 
ber, naming  them.  Then  follows  :  "Francis  Rumbout,  mayor  of  the  City 
of  New  York,"  and  five  aldermen  ( naming  them  ):  Richard  Betts,  High 
Sheriff  of  Yorkshire  (Long  Island),  and  the  names  of  four  iastices  of 
the  East  Riding,  one  justice  -of  the  North  Riding,  three  justices  of  the 
West  Riding ;  two  commissioners  of  Albany,  one  justice  of  Esopus, 
three  justices  of  New  Jersey,  "John  Gardiner,  Chief  Justice  of  Nan- 
tucket," and  two  justices  of  Pemaquid,  Cogear  Knapton  and  John  West. 
It  must  be  remembered  that  besides  distributing  justice,  the  Court  of 
Assize  was  a  quasi  legislature.  Its  records  consist  of  ordinances,  pre- 
scribed forms  of  summonses  and  subpoeneas,  commissions  of  officers, 
oaths  of  allegiance  and  of  office,  letters  of  denization,  popular  petitions 
and  the  answers  thereto,  besides  the  details,  with  reasonable  fulness, 
of  cases  on  appeal  from  inferior  courts,  and  of  trials  in  civil,  criminal, 
equity,  admiralty  and  prize  cases,  exchequer  cases,  and  what  not.  As 
the  regular  term  of  the  court  was  held  but  once  a  year,  and  its  business 
was  generally  completed  within  a  week,  the  governor  was  frequently 
called  upon,  in  the  interim,  to  hear  motions  in  causes  of  one  kind  or 
another,'  not  admitting  of  delay. 

1  The  province  having  been  recaptured  hy  the  Dntch  with  costs.    It  is  worth  mentioning  tliat,  at  tliis  same 

in  September,  J  673,  was  occupied  by  tlieni,  from  that  term,  in  one  case,  in  which  there  had  been  an  aflirmance, 

time  to  October  of  the  following  year,  during  which  the  appellant  "  craves  an  appeal    to  the    King     and 

period  the  old  Court  of  Burgomasters  and  Scheppens  Councill  which  is  granted  giving  Security  according  to 

■was  re-established.    Its  recordsare,  with  those  of  the  old  law." 

court,  now  in  possession  of  the  clerk  of  the  board  of  a  Here  is  a  specimen  order  found  in  "  General   Ent- 

aldermen.  If  any  records  of  the  Court  of  Assize  are  ex-  ries,"  Vol.  1,  p.  82.    "  Under  the  petition  and  complaint 

tant,    for  the   period  after  the  re-occupation   by  the  "of   Andrew   Messenger,  who  hath  made  his  appeal 

English  np  to  October  6,  1680,  the  writer  has  not  seen  "unto    me  concerning  a  judgment  which    hath   past 

them.  "  against  hira  in  your  courts,  as   he   supposeth  very 

a  At  the  February  term  of  the  court  held  1679-80,  an  "  wrongfully,  I  do  hereby  reciuest  and  demand  that  you 

appeal  was  heard  "from  a  verdict  and  judgment  given  "proceed   no   further  in  the  case,  but  that  you  with 

at  the  Court  of  the  Whorkill"— that  is,  on  the  Dela-  "  those  that  are  concerned  appear  before  me  on  Thurs- 

ware.    The  judgment  below,  which  was  "  for  the  de-  "  day  the  2d  of  February,  next,  in  the  forenoon,  that  I 

fendant   for  title  of  land  called   Willingbrook,   'first  "  may  the  better  understand  the  matters  in  difference 

surveyed  for,  seated  and  improved  by  him,"  wasafflrmed  "between  you  and  give  you  my  opinion  thereupon. 


iii-^i(ii;v 


Tlir  ininiit.'s  of  I  lie  coiiil,  or  Hi."  ivcoid  of  ils  dnily  proccodiims  in 
term  time,  :iii'  lull  ciioiii^li  to  i^ivn  a  g-ood  idea  of  tlio  iiici-iis  of  :iii\ 
particular  controvcisy,  aii<l,  taken  to.i^etlier,  fiiniisli  a  tolerably  cI'-ai 
l)ictur(3of  the  social  and  econoinio  condition  of  the  ])i-ovince  foi-tli. 
first  ei.i;hteen  years  of  tiie  Englisli  dominion.  One  cannot  say  Ilia  I  tin 
rtH'ords  disclose  any  instance  of  outrageous  injustice,  or  serious  d.-p.irt 
ures  l"i-om  judicial  propriety,  but  its 
verdicts  were  sometimes  set  aside 
by  the  governor  and  council,  in 
consideration,  as  the  record  says,  of 
''the  equity  of  the  case."  Thus, 
on  the  first  day  of  the  first  term  of 
the  court  (  September  28,  1G05  ),  the 
case  of  John  Richbell  against  the 
inhabitants  of  the  town  of  Hunting- 
ton was  tried  before  a  full  ben(!li, 
Governor  Nicolls  presiding,  and  a 
jury  of  seven.  Mr.  John  Rider 
appeared  for  the  plaintiff,  who,  the 

record  says,  "  declares  upon  an  ac-     /i^-^-'.^-"'^    '  X 

count  of  trespass  for  that  the  defts'  '  '**"^' 

have  given  plaintiff  unjust  mole- 
station, in  the  possession  of  a  cer- 
tain parcel  of  land,  commonly 
called  Horse  Neck,  to  his  damage, 
etc.,  whereupon  he  brings  his  suit." 
The  plaintiff"  proved  his  title  through  mesne  conveyances  from  one 
Daniel  Whitehead  "  who  was  the  first  purchaser  thereof  from  the 
natives";  he  then  proved  a  subsequent  "  confirmation  thereof  from  the 
Grand   Sachem   Wyandance,   which  was    produced."       The  x^laintifl 


LORD  LOVELACE. 


"  Given  under  my  hand  at  James  Fort  in  New  York, 
"  this  10th  day  of  January,  IGW-o.  Richard  Nicolls. 
"To  the  Magistrates  of  Jamaica." 
The  followiiii:  (uder  was  iiiaile  by  Governor  Lovelace 
in  1GC9.  Itapix'ars  by  llu' nrital  that  Captain  John  Carr 
(the  commandant  on  the  Dilauare)  had  hiid  an  attach- 
ment upon  some  debts  there  due  to  Jolin  Garland  of 
New  Yorli  by  Isaack  Bedlow,  which  the  latter  had  paid 
over  to  Carr.  The  governor's  order,  which  is  addressed 
to  "William  Torn  as  Attorney  to  Mr.  John  Garland," 
after  the  recitals,  says:  "these  are  to  authorize  and 
"appoint  you  that  you  forewarn  him  the  said  Captain 
"Carr  from  intermeddling  any  more  in  that  matter. 
•'And  the  said  John  Garland  hath  hereby  liberty  by 
"  himself  or  his  attorney 
'  to  ask,  demand,  sue 
' f or,recover  and  receive 
'all  those  debts  in  the 
specie  agreed  on 
'and  according  to  the 
"  contract  made  with  the  respective  debtors.  And  if  it 
"  shall  appear  that  the  said  Carr  hath  received  any  part 
"of  the  same  in  any  other  pay,  he  is  to  make  it  good  to 
"  Mr.  Garland  or  the  debters  are  to  make  payment  of  it 


"  against  the  said  John  Garland  or  his  order  having  paid 
"the  former  in  their  own  wrong.  Given  &c.,  5th  day 
"of  August,  1669." 

We  give  one  more  instance  of  Lovelace's  summary 
method  of  vacating  an  attachment:  One  Arthur 
Strangeways  was  a  carpenter  engaged  in  building  a 
house  at  Newtown  for  one  Ralph  Hunt,  but  the  governor 
required  him  to  work  upon  a  ship  he  himself  was 
building,  whereupon  he  left  Mr.  Hunt's  employment 
Hunt  at  once  got  out  an  attachment  against  the  carpen- 
ter for  breach  of  covenant  and  levied  upon  certain  moneys 
owing  to  him  by  Arthur  Hotchman  and  one  John  Smith; 
which  coming  to  the  knowledge  of  the  governor,  he 
made  an  order  August  6, 1669.  addressed  to  the  justice 
of  the  peace,  constable  and  overseers  at  Newtown,  which 
commanded  them  (inasmuch  as  carpenter  Strangeways 
had  been  hindered  in  his  cmitract  to  build  Hum's  house 
"upon  the  account  of  working  as  a  carpriitor  at  my 
ship,  which  is  a  public  ciiiiiloym.Mit  imdiiig  to  the  good 
of  the  country  in  general"  )'■  1  .  .;i  1 1 -.;  1  u- said  attachment 
to  be  taken  oflE  from  both  ilu'  ^ail  mum-.,  the  said  Arthur 
Strangeways  being  free  fi..iu  any  ..ilur  private  engage- 
luont  of  work  as  long  as  he  is  employed  by  me."' 


52  HISTORY    OF    THE   BEKCH   AND   BAR   OF  NEW   YORK 

liaving  rested,  (tlie  record  proceeds),  "Mr.  Leveredge,  attorney  for  the 
defendants,  in  answer  to  the  pl'f  s  declaration,  denies  the  nnjust 
molestation,  and  jiretends  the  want  of  timely  benefit  of  the  declaration. 
He  argues  the  defts  title  to  Horse  Neck  to  be  more  valid,  as  being 
more  ancient  than  the  pl't's."  The  town  of  Huntington  founded 
its  title,  through  mesne  conveyances,  from  the  foiTuders  of  Oyster  Bay, 
who  purchased  large  tracts  of  land  in  the  neighborhood  from  the 
natives,  long  before  the  Grand  Sachem  Wyandance's  confirmation  of  the 
deed  to  the  x>laintift"s  grantor.  But  the  great  defect  in  defendant's 
case  was  that  Horse  Neck  was  not  mentioned  by  name  in  the  Oyster 
Bay  deed,  and  plaintifl',  in  rebuttal,  showed  that  it  was  "reserved  by 
the  Indians  at  their  sale,  for  hunting,"  by  the  testimony  of  several  of 
the  original  purchasers  of  the  Oyster  Bay  and  Huntington  land.  The 
substance  of  the  testimony,  and  of  the  arguments  of  the  respective 
counsel,  is  readily  perceived,  and  the  record  is  quite  equal  to  the  work 
of  a  modern  newspaper  reporter  of  court  proceedings.  "  After  a  long 
debate  of  the  cause  on  both  parts,  it  was  referred  to  the  jury,  who  next 
morning  brought  in  their  verdict,  as  followeth,  viz.  That  upon  serious 
consideration  of  the  cause  depending  between  Mr.  Richbell,  and  the 
town  of  Huntington,  weighing  all  the  evidence,  we  find  for  the  defend- 
ant, we  finding  that  the  ancient  deed  is  the  right  of  the  town  of  Hunt- 
ington, wherein  we  find,  by  the  bounds  of  Huntington's  deed,  and  by 
evidence,  that  Horse  Neck  ( which  is  in  the  controversy  )  be  within  the 
bounds  of  Huntington' s  deed,  unless  further  light  can  be  made  appear 
unto  us  by  the  honored  governor  and  council,  and  that  the  plaintiff  shall 
pay  all  costs,  and  charges  depending  upon  this  suit."  The  record 
proceeds,  and  concludes  as  follows  : 

"  The  court  liaving  heard  the  case  in  difference  between  the  pl't 
and  defendants  debated  at  large,  concerning  their  title  to  a  certain 
parcel  of  land  commonly  called  Horse  Neck,  and  having  also  seen  and 
perused  their  several  writings  and  evidences  concerning  the  same,  it 
was  committed  to  a  jury  who  brought  in  their  verdict  for  the  defend- 
ants, upon  which  the  court  demurring  did  examine  further  into  thQ 
equity  of  the  cause  and  upon  mature  and  serious  consideration,  do  find 
that  the  said  parcel  of  land  called  Horse  Neck  doth  of  riglit  belong  to 
the  pl't,  it  being  purchased  by  the  said  pl't  for  a  valuable  con- 
sideration, and  by  the  testimony  of  the  first  purchasers  under  whom 
the  defendants  claim  was  not  conveyed  or  assigned  by  them  to  the  de- 
fendants, with  their  other  lands,  upon  which  and  divers  other  Aveighty 
considerations,  the  court  doth  agree,  that  the  said  parcel  of  land  called 
Horse  Neck  doth  of  right  belong  and  appertain  unto  the  plaintiff  and 
his  heirs.  And  it  is  hereby  ordered,  that  the  high  sheriff  or  under 
sheriff  of  the  North  Riding  of  Yorkshire  upon  Long  Island,  do  forth- 
with ])nt  the  said  plaintiff,  or  his  assignes,  in  possession  thereof. 
And  all    persons  are  hereby  required  to  forbear  giving  the  said   pl't 


or  liis  :issi_i;'iH's,  :iiiy  iiioIcsImI  ion,  in  lln-  iifacf.-ihli-  :in(l  (juict 
eiijoynuMit  ot"  llit*  pi-einiscs."' 

As  nii<;lit  bt>  cxiH'ctt'd,  in  :i  newly  .st'tllfd  conntry,  tln-ro  was  ;i 
good  deal  of  liligatiou  over  land  titles,  hnt  the  i-eeoi-ds  discloso  a  wide 
range  of  judicial  business,  from  \)oUy  civil  (-ases  to  indictments  for  cap- 
ital oll'ences,  including  one  against  Ralph  Hall,  and  another  against  his 
wife,  for  that  they,  "by  some  detestable  and  wicked  arts,  commonly 
called  witch  craft  and  sorcery,  did  (as  is  suspected)  maliciously  pitu;- 
tice  and  exercise  at  the  said  town  of  Seatalcott  [Brookhaven],  &c.,  on 
the  person  of  George  Wood,  late  of  that  place,  by  which  wicked  and 
detestable  arts,  the  said  George  Wood  (as  is  suspected)  most  danger- 
ously and  mortally  sickened  and.  languished,  and  not  long  after,  by  the 
aforesaid  wicked  and  detestable  arts,  the  said.  George  Wood  (as  is  like- 
wise suspected)  died."  There  was  a  second  count  for  bewitching  the 
infant  child  of  the  widow  of  said  George  AVood.  The  case  was  tried 
October  2,  1(505.  Both  of  the  prisoners  pleaded  not  guilty,  "and 
threw  themselves  to  be  tried  by  God  and  the  country."  The  record 
says,  that  "  thereupon  sevei-al  depositions,  accusing  the  prisoners  of  the 
facts  for  which  they  were  indicted,  were  read,  but  no  witnesses  appeared 
to  give  testimony  in  court  viva  voce.""  Nevertheless,  "  the  case  was 
referred  to  the  jury  wiio  brought  in  the  following  verdict :  We  have 
seriously  considered  the  case  committed  to  onr  charge,  against  the  pris- 
oners at  the  bar,  and  having  well  weighed  the  evidence,  w^e  find  tliat 
there  are  some  suspicions,  by  the  evidence,  of  what  the  woman  is 
charged  with,  but  nothing  considerable  of  value,  to  take  aw^ay  her  life. 
But  in  reference  to  the  man,  we  find  nothing  considerable  to  charge 
him  with."  The  record  proceeds  :  "The  court  thereupon  gave  this 
sentence,  that  the  man  should  be  bound  body  and  goods  for  his  wife's 
apx^earance  at  the  next  sessions,  and  so  on  from  sessions  to  sessions,  as 
long  as  tliey  stay  within  this  government,  in  the  meanwhile  to  be  of 
good  behavior.  So  they  were  returned  into  the  sheriff  s  custody  and 
upon  entering  into  a  recognizance,  according  to  the  sentence  of  the 
court,  they  were  released,"" 

This  w^as  twenty-three  years  before  the  witchcraft  superstition  be- 
came deadly  in  Massachusetts ;  it  did  not  become  epidemic  in  Salem 
village  until  1691-2,  when  a  special  court  to  try  the  witches  was 
created,  whose  sanguinary  proceedings  have  left  a  lasting  stain  upon 

>  The  land  in  suit,  still  called  Horse  Neck,  is  in  the  »  On  Angnst  21,  16C8,  Governor  Nicolls  gave  the  fol- 

town  of  Greenwich,  Conn.,  on  north  shore  of   Long  lowing  release  to  Kalph  Ilall  and  his  wife,  from  their 

Island  Sound,  opposite  Huntington,  on  the  south  shore.  recognizance:  "  Tluse  are  to  certify  to  all  whom  it 

It  is  true  that  In  December  of  the  year  previous  to  this  may  concern,  that  Ralph  Hall  and  Mary,  his  wife,  (at 

lawsuit,  the  Connecticut  Commissiouers  had  "tricked"  present    living    upon  lliniford's  Island,)   are    hereby 

Governor  Nicolls  and  his  fellow  commissioners  into  released  and  acquitted  from  any  and  all  recognizances, 

agreeing  to  Mamaroneck  creek  as  the  boundary,  where-  bonds  of  appearance  or  other  obligations  entered  into 

as  it  should   have  been  (according  to  all  New  Yorkers)  by  tliera  or  either  of  them,  for  the  peace  of  good   be- 


several  miles  further  east,  so  as  to  have  included  Horse  havior,  upon  account  of  any  accusation  or  indictment 

Neck;  but  the  matter  was  not  yet  linally  determined,  of  witchcraft,  brought  into  the  Court  of  Assizes  aijaiust 

for  "the  absurd  error  was  soon  detected,  and  the  bound-  them  in  the  year  1GC.5  ;  there  having   been   no  direct 

ary  was  never  ratified  by  the  Duke  of  York,  or  by  the  proofs  nor  farther  prosecution  of  them   since.    Given 

crown."  Brodhead,  ii.,  5ti.  under  my  hand,"  etc. 


54 


IIISTOKY    OF    THE    BENCH    AND    BAR    OF   NEW    YORK 


GOVERNOR  THOMAS  DONGAN. 


the  puritan  Judiciary  of  Massacliusetts.  That  an  accusation  of  witch- 
craft should  haA-e  been  made  in  New  Yorli  in  I6G0  does  not  excite 
our  special  wonder,  for  a  belief  in  its  possibility  was  universal  at  that 
period,  and  being,  as  was  supposed,  founded  on  Scripture,  was  like- 
ly to  be  fostered  by  the  clergy.  We 
do  not  know  the  contents  of  the  de- 
positions on  which  Hall  and  his  Avife 
Avere  indicted  and  tried,  but  it  is  evi- 
dent tliat  the  trial  was  conducted  with 
a  decent  regard  for  truth,  and  with  a 
judicial  sobriety  which  contrasts  for- 
cibly with  the  bloodthirsty  and  law- 
defying  proceedings  of  the  Massachu- 
setts judiciary,  in  whom  reason  and 
every  humane  feeling  seem  to  have 
been  completely  overwhelmed  in  that 
brief  period  of  nervous  exaltation. 
^  The  last  session  of  the   Court  of 

Assize  was  held  October  3,  1683,  Gov- 
ernor Dongan  presiding.  Though  a 
soldier  and  not  a  lawyer,  he  is  said 
by  one  of  the  members  of  the  court 
to  have  "behaved  with  discretion, 
patience  and  moderation,  showing  in  him  that  princii)le  of  honour, 
not  wilfully  to  injure  any,  and  having  a  regard  to  the  equity  of  all 
his  judgments." 

The  Early  Lawyers. 

Up  to  this  time,  and  for  some  years  thereafter,  there  Avas  nothing 
in  the  province  recognizable  as  a  bar,  that  is,  no  distinct  class  of  pro- 
fessional laAvyers.  The  Assize  Court  records  give  tlie  names  of  a  num- 
ber of  "attorneys"  as  appearing  for  one  or  the  other  parties  litigant 
before  it,  such  as  John  Sharpe,  John  Eider,  Thomas  Owen,  Mr.  Leve- 
ridge,  Mr.  Bogardus  and  Nicholas  Bayard.  Other  names  appear  in  the 
records  of  the  Mayor's  Court.  It  does  not  follow  that  any  of  these 
were  bred  to  the  laAv,  or  made  its  j^ractice  an  exclusive  employment. 
They  Avere  traders,  factors  for  foreign  merchants,  land  speculators,  or, 
it  may  be,  mechanics,  who,  possessing  a  recognized  talent  for  managing 
affairs,  or  for  penmanship,  or  an  easy  volubility,  were  likely  to  be 
called  on  by  their  neighbors  to  act  as  conveyancers,  attorneys,  or 
advocates,  as  the  matter  in  hand  might  require. 

There  does  not  apj^ear,  however,  to  have  been  in  New  York  such  a 
popular  prejudice  against  lawyers,  as  a  class,  as  was  notoriously  the 
case  in  some  of  the  other  colonies,  particulai'ly  in  Massachusetts  Bay. 
FolloAving  the  code  of  that  colony,  the  Nicolls  Code  prt)vided  for  the 
punishment  of  common  barrators — "  vexing  others  with  unjust,  frequent 


iiisi'oKv   oi"  Tiir:   1!i:n<ii    \m>   i:ai:  oi'   m;w    vi>i;k  ;».> 

Jllid  cikUcss  hiwsiiils,"  ;is  I  lie  sliil  ul.'  ir:i(l.s,  l)y  liiH'  iilid  iinprisoiiiriclil  ; 
besides,  "  it  sii.ili  !>.•  in  liie  ijowcr  of  tlio  coiii-t  to  reject  his  cause."  It 
Avas  also  ])i()vided  (hat  no  jiistic^e  of  tlio  jx'ace,  wliilo  in  coniniission, 
sliould  b(i  an  attorney  in  any  case,  and  "no  liif-h  Sheriff*  under  SlierilTe, 
liigh  Constable,  i)etty  Constable  or  Clarke^  of  the  Couit  shall  b(^  pei-- 
niited  to 'plead  as  Attorney  in  any  Persons  behalfe  in  the  Coui-t  where 
he  Odiciates."  In  the  case,  however,  of  a  poor  i)erson,  not  abh;  to  i)lead 
his  own  case,  the  conrt,  on  Ids  request,  nnghtassi<^n  Idni  either  of  these 
officers  to  plead  for  him  ;  "but  the  person  so  i)leading  the  jwor  man's 
case  is  not  to  give  judgment,"  These  officers,  also,  where  they  were 
agents  or  attorneys-in-fact  of  non-residents,  or  absentees,  and  therefore 
"liable  to  be  sued  for  tlieir  Employers,"  niiglit  "jileadand  prosecute 
in  any  cause  that  shall  any  way  Concern  their  said  P^mployers."  The 
inhibition  of  justices  of  the  i>«ice,  acting  on  behalf  of  a  litigant,  was, 
no  doubt,  due  to  the  fact  that  they  were,  ex-oj[ficio,  entitled  to  sit  in 
the  Court  of  Assizes ;  and  a  justice  might  thus  have  a  vote,  on  an 
appeal,  in  a.  case  in  which  he  had  been  an  advocate  in  the  court  below. 

The  Nkw  Constitutions  of  1683  and  1G91. 

The  year  1683  is  memorable  in  the  history  of  New  York,  as  that 
in  Avhich  the  iirst  representative  assembly  convened  and  entered  upon 
the  business  of  legislation.  Colonel  Thomas  Dongan,  who  came  out  as 
the  Duke's  deputy  in  August  of  that  year,  was  authorized  by  his 
instructions  to  issue  writs  to  the  proper  officers  in  every  part  of  his 
government  for  the  election  of  "  a  general  assembly  of  all  the  free- 
holders by  the  persons  who  they  choose  to  represent  them,"  not  to 
exceed  eighteen,  it  being  the  Duke's  declared  "resolution"  that  such 
laws  propounded  by  it  "  as  shall  appear  to  me  to  be  for  the  manifest 
good  of  the  country  in  general  and  not  prejudicial  to  me,"  would 
receive  his  assent  and  confirmation.  The  first  session  of  this  notable 
assembly  convened  October  30,  1683 ;  the  second  on  October  21  of 
the  following  year,  at  both  of  which  laws  were  "  propounded  "  of  sing- 
ular historical  interest,  but  which,  for  lack  of  evidence  of  their  having 
ever  been  assented  to  by  the  Duke,  have  not  been  regarded  as  legal 
enactments.  No  record  of  the  names  of  the  members  of  this  first  gen- 
eral assembly,  or  of  their  deliberations,  survives,  except  that  we  know 
Mathias  Kicolls,  for  many  years  the  secretary  of  the  province,  was  t\\e 
speaker,  and  John  Spragg,  the  then  secretary  of  the  province  and  a 
member  of  the  council,  was  the  clerk.  We  have  also  the  titles  of  the 
fourteen  several  bills  j)assed.  A  second  assembly,  convened  on  Novem- 
ber 3,  1685,  Avas  dissolved  by  proclamation  January  30,  1686,  by 
reason  of  the  Duke' s  having  in  the  meantime  ascended  the  throne  as 
James  II.  New  York,  no  longer  the  private  domain  of  a  subject,  now 
became  a  province  of  the  crown.  Theretofore,  in  respect  to  its  local 
government,  and  the  appointment  of  officers  to  administer  it.  New  York 
was  a  county  palatine,  like  the  counties  of  Chester,  Durham  and  Lan- 


56 


IIISTOET   OF   THE   BEXCII   A^D   BAR   OF   IS^EAV    YORK 


caster, in  England, in  wliicli  from  a  remote  period, down  to  27  Henry  Till., 
c.  24,  the  Earl  of  Chester,  the  Bishop  of  Durham  and  the  Duke  of  Lan- 
caster, respectively,  hiid  Jura  regalia  as  completely  as  the  king  m  his 
palace,  and  consequently  administered  justice  within  their  respective 
counties,  by  judges  appointed  by  themselves  and  not  by  the  crown. 
But  it  was  the  king  sitting  in  council,  who  was  now  the  immediate 
source  of   all  power,  and  new  commissions   to   the  provincial  officers 

became  necessary.  r    -,•  ■,    a 

The   new   commission  sent   out  declared  the  assembly  abolished, 
and  invested  the  governor    "with  full  power  and   authority  by  and 


JTJe   ^7^ocl3    JfoLy 


DONGAN  MAP,  1699. 


III> 


ii:v 


N  r  1 1     AM 


i;  A  i: 


r.7 


with  the  :i(lvict'  :iii(l  (•(.iisnil  of  the  coiiiicil,  or  llic  u\:\y>v  p:iit  ol    III. •in, 
to  make,  (U)nslitiit(win(l  ordain    laws,   statiitt'S  and   ordinances,"    ric. 
The  extra  le<;al  cliaracter  of  tli(i  hiws  "propounded"  l)y  tlic   Duke's 
assen)l)ly  of  1(583  does  not  detract  from  llie  lionor  due  to  tli(i  men  w  iio 
initiated  them— to  Governor    Don^^an   i)articnhirly,  wliom  all   our  his- 
torians unite  in  praising  as  most  truly  a  "New    Y(tiker."     TIk;  most 
important  of  these  measures  were  sub- 
stantially re-enacted  eight  years  after- 
wards,  by   the  iirst    assembly  elected 
under    William    and    Mary,   in    1(!91, 
which    adopted  a,   icsolution   intended 
to  annul  all  the  acts  of  the  Dongan  as- 
sem'l)ly,  and  the  several  ordinances  of 
tlie  late  government.   This  put  an  end 
to  the  courts  Avhicli  liad  been  organized 
by  Dongan,  and  which  we  must  sni>pose 
had  been  open   during  the  preceding 
period     of     revolutionary    confusion. 
The   Dongan  "Act  to  settle  courts  of 
jnstice,"  besides  abolishing   the  Court 
of  Assize,  had  i)rovided  a  new  system 
of  local  administration  by  town  and 
connty  coui'ts  and  boards.     There  was 
to  be  a  petty  court  for  each   town,  a 
county   court  or    Common  Pleas,    for 
each  county,  a  Court  of   Oyer  and  Ter- 
miner, and  a  Court  of  Chancery  for  the 
whole  province.  The  latter  court  was 
to  be  composed  of  the  governor  and 
council  —  which   was    only    giving    a 
high-sounding,  but  hated   name,  to   a 
body  which,  from  the  first,  had  assumed 
chancery  jurisdiction.       As  judges  of 
the   Oyer  and  Terminer,  Dongan  had  appointed  Mathias   Nicolls  and 
John  Palmer,  an  English  lawyer  who  had  come  to  New  York  from  the 
Barbadoes  in  1674.     Thomas  Rudyard,  a  London  lawyer,  and  formerly 
lieutenant-governor  of  New  Jersey,  was  commissioned  the  Duke's  attor- 
ney-general, and  James  Graham  Avas  made  the  first  of  the  long  line  of 
recorders  of  the  city,  taldng  his  seat  on  the  bench,   "  on  the  right  hand 
of  the  mayor,"  December  4, 1683.     The  governor  retained   for  himself, 
as  all  his  predecessors  had  done,  the  functions  of  a  surrogate  or  probate 
judge  for  the  whole   province.     The  governor  and  council  were  also 
decreed  to  constitute  a  Court  of  Exchequer,  Avhich  was  to   meet  on  the 
first  Monday  of  each  mouth.     This  first  period  of  the  juridical  history 
of  New  York,  as  an  English  province,  w^as  closed  by  the  English  revo- 
lution of  1688,  fitly  enough  characterized  as  the  "  happy  revolution " 


SEAL,  DONGAN  CHARTER. 


58  HISTORY    OF   THE   BENCH   AXD   BAR   OF   NEW    YORK 

in  England,  and  for  Engiislimen  living  there,  bnt  full  of  disappointment 
to  their  majesties'  subjects  living  in  distant  America.  In  JSew  York, 
especially,  the  hopes  aroiTsed  by  the  seating  of  the  new  sovereigns  on 
the  throne  soon  suffered  a  dismal  defeat — the  event  being  attended  by 
tragic  circumstances,  which  originated  social  and  political  diversities 
unexampled  for  their  bitterness  and  long  continuance.  The  king,  a 
born  Netherlander,  the  citizen  of  a  republic,  and  the  life-long  enemy  of 
Louis  Xiy.,the  impersonation  of  absolutism, might  naturally  be  counted 
on  as  a  friend  of  civil  and  religious  liberty  at  home  and  abroad.  If  his 
Dutch  kin  in  ancient  New  Netherland  ever  imagined  that  he  would 
turn  a  more  kindly  eye  or  listening  ear  to  them  now  that  he  had  be- 
come their  sovereign  king,  the  illusion  Avas  but  transitory.  He  had  no 
heart,  it  is  said,  for  anything  but  continental  politics,  and  incidentall  y 
to  preserve  from  further  curtailment,  in  home  affairs,  as  much  of  the 
royal  jjrerogative  as  the  wreck  of  the  revolution  had  left  intact. 
Colonial  affairs  seem  never  to  have  attracted  his  attention  or  excited 
his  interest  further  than  to  resist  the  suggestion  made  to  him,  to  sur- 
render some  i)ortion  of  his  prerogative  powers  of  governing  the  colonies 
himself  in  council.  It  was  the  Englishmen  at  home  who  gained  new 
guarantees  of  constitutional  rights,  enlarged  freedom  from  arbitrary 
l^ower  and  security  against  unrestrained  prerogative.  As  for  English- 
men in  the  colonies,  their  relation  to  the  crown  remained  what  it 
always  had  been,  which  was,  according  to  William's  first  chief -justice 
of  the  King's  Bench,  Holt,  that  "their  law  is  what  the  King  pleases  " ; 
for,  according  to  Granville, — a  member  of  his  privy  council, — "the 
governor's  instructions  are  the  law  of  the  land,  for  the  King  is  the 
Legislator  of  the  Colonies."  Under  the  instructions — copied  nearly 
verbatim  from  the  Duke  of  York's  instructions  to  Dongan — given  to 
Colonel  Henry  Sloughter,  William's  first  governor,  who  arrived  March  19, 
1691,  writs  were  issued  for  a  general  assembly  of  freeholders,  which 
accordingly  convened  on  April  9.  The  law-making  power  was  vested 
not  in  this  body,  however,  but  in  the  governor,  acting  with  the  consent 
of  the  council  and  a  majority  of  the  assembly,  subject  of  course  to 
the  approval  of  the  sovereign.  To  the  end  of  the  colonial  period,  the 
enacting  clause  of  all  bills  was  :  "  Be  it  enacted  by  his  Excellency  the 
Governor,  by  and  with  the  consent  of  the  Council  and  Assembly,  and 
by  the  authority  of  the  same."  Some  very  notable  legislation  Avas 
effected,  however,  by  this  assembly.  It  re-enacted,  with  slight  varia- 
tions of  language,  some  of  laws  noticed  above  as  having  beeh  passed  by 
Dongan's  discredited  assembly  of  1083,  one  of  which,  entitled  "An  act 
for  declaring  what  ai-e  the  rights  and  jirivileges  of  their  Magesties' 
subjects  inliabiting  within  this  province  of  New  York,"  does  not  differ 
greatly  from  the  "Charter  of  Libertyes  and  piivileges"  of  Dongan's 
assembly;  but  it  met  the  untoward  fate  of  its  original,  and  was  vetoed 
by  the  king,  six  years  after  its  j)assage.  But  jierhaps  its  most  imi)or- 
tant  work  was  providing  a  system  of  county  govei'nment  by  officers 


iiisioin    (ti-   iiip:  I!i:\(  II    \m»   i-.m:  <•!■   m:\v   mw.k  51) 

(supervisors)  cliosni  by  lln"  rlfclois  of  tln"  sr\fi;il  louns,  :iii(l  :i  (•(tiiiily 
livnsiittT,  ficclcd  by  (he  xoU'i'S  of  Mid  couiity  jit  I:ii-,y('. 

'I'lioiiuli  tliis  schi'iiir  of  county  ^n)V('i-iimt'iit  \v;i.s  nbolislKMl  in  17(t], 
it  w;is  I'o-cstablishcd  in  June,  17();{,  and  has  coiitiiuu'd  evei-Hincfi  witli- 
out  material  modilicadon.  Count io.s  in  New  England  and  in  tlu; 
southern  states  liave  never  been  niucli  more  than  mere  geof^rapliical 
expressions,  without  any  corporate  existence  or  system  of  local  admin- 
istration. Tlie  New  York  sui)ervisor  system  of  local  government,  thus 
created,  "  was  destined  to  have  a  i)r()foundiniluence  on  the  sul)sequent 
devek)i)ment  of  local  administration  in  the  United  States.'"  In  a 
somewhat  modilied  form,  it  was  very  soon  adopted  by  Pennsylvania. 
"To  New  York  lirst,  and  next  to  Pennsylvania,"  says  a  competent 
authority,  "belongs  the  honor  of  predetenniniiig  the  character  of  local 
govei-nment  in  the  west.  But  if  New  York  was  the  first  to  return  to 
the  ancient  practice  of  township  representation  in  the  county  court, 
it  Avas  in  Pennsylvania  that  the  capabilities  of  the  independent  county 
were  first  tested.  New  York  is  the  parent  of  tlie  supervisor  system."' 
Another  important  act  passed  by  the  lirst  assembly  of  1G91,  was  "for 
Establishing  Courts  of  Judicature."  Besides  various  local  tribunals 
then  existing,  it  erected  a  Supreme  Court,  to  sit  in  New  York,  consist- 
ing of  a  chief  Justice,  a  second  justice  and  three  associate  justices,  to  be 
commissioned  by  the  governor,  on  a  royal  mandamus  from  Westminster. 
Appended  to  a  list  of  all  the  officers  in  the  civil  service  of  the  pro- 
vince on  April  20,  1693,  made  by  Matthew  Clarkson,  the  secretary,  is 
"An  Account  of  all  Establishmtes  of  Jurisdiction  within  the  Province," 
as  follows : 

'■'■Single  Justice.  Every  Justice  of  the  Peace  hath  power  to  deter- 
min  any  suite  or  controversy  to  the  value  of  fourty  shillings. 

"QiMrier  Sessions.  The  Justices  of  the  Peace  in  quarter  sessions 
have  all  such  powers  and  authorities  as  are  granted  in  a  Commission  of 
ye  Peace  in  England. 

^'■County  Court.  The  County  Court  or  common  Pleas  both  cogniz- 
ance of  Civil  accons  to  any  value  excepting  Avhat  concerns  title  of  land, 
and  noe  accon  can  be  removed  from  this  Court  if  the  damage  be  under 
twenty  pounds. 

'•'Mayor  &  Alder  em.  The  Court  of  Mayor  and  Aldermen  hath  the 
same  power  with  the  County  Courts, 

"•  Supreme  Court.  The  Supreme  Court  hath  the  j^owers  of  Kings 
Bench,  Common  Pleas  &  Exchequer  in  England  and  noe  acc(5n  can 
be  removed  from  this  Court  under  £100. 

'■'Chancery.  The  Governour  and  Councill  are  a  Court  of  Chancery, 
and  have  the  powers  of  the  Chancery  in  England,  from  whose  Sentence 
or  decree  nothing  can  be  removed  under  £300. 

'■'■Prerogatite  Court.     The  Governour  discharges  the  i)lace  of  Ordin- 

•  Professor  Frank  J  Goodnow,  "CompariitiveAdmin-  »  Professor  Howard,  "lA)cal  Constitutional  History  of 

istrative  Law,"  (N.  Y.,  1893),  1,  1U8.  the  U.  S.,"  i,  387. 


60  HISTORY    OF   THE   BEXCII    AND   BAR    OF   XEW   YORK 

ary  in  granting  administracons  and  proveing  Wills  &:  The  Secretary  is 
Register.  The  Governr.  is  about  to  appoint  Delegates  in  the  remoter 
parts  of  the  government,  with  Supervison  for  looking  after  intestates 
estates  and  orphans. 

'•  Court  Marshall.  The  Governr.  hath  established  a  Court  Martiall 
att  Albany  whereof  Major  Richd.  Ingoldesby  is  President  and  Robert 
Livingston  Judge  Advocate,  who  with  the  other  commissioned  Captains 
att  Albany  have  jDower  to  exercise  Martiall  Law  being  a  frontier  gar- 
rison and  in  actuall  warr. 

"  AdmiraJty.  Their  Magesties  reserve  the  appointment  of  a  Judge, 
Register,  and  Marshall." 

The  Supreme  Court. 

The  declaration  of  our  Code  of  Civil  Procedure,  that  the  Supreme 
Court  of  the  State  of  New  rork  possesses  (subject  to  certain  constitu- 
tional limitations)  "'all  the  jurisdiction  which  was  possessed  and  exer- 
cised by  the  Supreme  Court  of  the  Colony  of  New  York,  at  any  time," 
refers  to  the  Supreme  Court  established  by  the  act  of  1691.  The  court 
was  declared  by  its  original  constitution  to  have  cognizance  of  all 
actions  civil,  criminal,  and  mixed,  as  fully  and  amply  as  the  King's 
Bench,  the  Common  Pleas,  or  the  Exchequer,  in  England.  Its  civil 
jurisdiction  was  limited  to  actions  for  the  recovery  of  sums  exceeding 
£20,  and  suits  for  that  sum  or  over  in  inferior  courts  were  removable 
to  it.  Appeals  from  civil  judgments  of  the  Supreme  Court  lay  to  the 
governor  and  council,  where  the  amount  exceeded  £100  in  value,  until 
1753,  when  the  amount  was  increased  to  £300.  "Where  the  amount  ex- 
ceeded £500,  an  appeal  was  permitted  to  the  king  in  council,  pro- 
vided it  was  taken  within  fourteen  days  after  entry  of  judgment,  and 
the  appellant  secured  payment  of  final  judgment  and  costs. 

«  The  court  was  to  be  composed  of  a  chief-justice  and  four  associate 
or  puisne  judges,  the  chief-justice  and  two  judges  making  a  quorum. 
In  1701,  however,  two  of  the  associate  judges  were  dispensed  with. 
Fifty-seven  years  afterward,  in  November,  1T58,  to  accomplish  the 
increasing  business  of  the  court,  another  judge  was  added,  making 
four  in  all,  including  the  chief-justice,  and  this  constitution  of  the 
court  continued  down  to  the  Revolution.  Until  1769  the  associate 
judges  ranked  according  to  their  designation  in  their  respective  com- 
missions, as  second,  third,  or  fourth  judge,  but  after  that  date  they 
ranked  according  to  the  dates  of  their  commissions. 

At  first  only  the  chief-justice  and  the  "second  judge"  received 
salaries— the  one  £130  and  the  other  £100  per  annum.  In  1698  the 
chief- justice's  salary  was  reduced  to  £100;  four  years  afterward,  in 
1702,  it  was  raised  to  £300,  with  a  fee  of  ten  shillings  on  the  first 
motion  in  every  cause,  the  second  judge  being  at  the  same  time 
awarded  £150,  and  the  three  associates  £.50  each.  In  1765  the  associate 
judges'  allowance  was  raised,  for  riding  circuits,  to  £200.     After  1774 


IIISIOKY    OK    rilK    ItKNC  II    AM 


f;i 


the  (•liifrjiistifc  \v;is  to  receive  £'.">()()  sterliui;-  Iroiii  llie  ciou  ii,  :iii<l  in 
juklilion  .{;:{()(),  New  York  cui  reiicy,  I'lom  flie  provincial  licasiiry,  llie 
other  jiidgH's'  salaries  reniainiii<i:  at  l"J()(),  New  York  currency,  equiv- 
alent to  ,£1()()  sterling,  besides  their  fees. 

The  judges  of  the  new  court  were  aiiiioiinced  at  oiice  on  i1m» 
passage  of  tlie  act,  and  very  soon  met  and  oigani/<nl  lor  business. 
Joseph  Dudley  was  named  chief-justice,  Thomas  .lohnson  second 
jndge,  with  William  Smith,  Stephen  Cortlandt  (otherwise  called 
Stephanus  Van  Cortlandt),  and  William  Piidiorne,  jiuisne  judges.  Of 
these  only  \'an  Cortlandt  was  a  native  of  the  province,  and  none  of 
them  was  regularly  bred  to  the  law,  though,  in  ItlOI,  this  was  no  great 
matter  in  the  dis])osition  of  the  great  bulk  of  litigation  as  between 
man  and  man.  The  chief-justice  was  a  native  of  Massachusetts,  from 
which  he  had  been  ex- 
pelled in  disgrace,  and  t>r 
had  come  here  from  -^  /^^^ 
England  on  a  promise 
of  the  chief-justiceship 
when  the  court  should 
be  made  up.  He  re- 
mained in  office,  how- 
ever, for  eighteen 
months  onlj"  (May  15, 
lO'Jl,  until  November  11, 
1092),  when  he  was  suc- 
ceeded by  his  associate,  William  Smith,  a  native  of  England,  but  a  resi- 
dent of  the  province  since  1686,  a  notable  man,  and  a  leader  of  the 
presbyterian  or  "  republican  "  party  of  the  day  and  long  after."  After 
a  service  of  eight  years,  he  was  displaced  (October  30,  1700)  for  about  a 
month,  Van  Cortlandt  taldng  his  seat  for  that  period  (October  30  to 
November  25,  1700).  Again  commissioned,  he  was  compelled  to  give 
way  tw^o  months  afterward  to  Abraham  De  Peyster,  than  a  puisne 
judge,  who  was  appointed  temporarily  until  the  new  chief -justice,  ap- 
pointed directly  by  the  crown,  should  arrive  from  England — William 
Attwood.  But  within  less  than  a  year,  this,  the  first  regularly  trained 
lawyer  who  occupied  the  office,  fled  the  province  in  disguise  at  night  to 
escape  arrest  by  the  new  governor  just  arrived.  William  Smith  was 
restored  to  the  chief-justiceship,  which  he  held  until  another  English- 
bred  lawyer  could  be  sent  over — John  Bridges,  doctor  of  laws,  who  was 
commissioned  April  5, 1703.  Doctor  Bridges  having  died  within  less 
than  a  year,  Roger  Mompesson,  a  native  of  England,  a  barrister,  at 
one  time  recorder  of  Southampton,  Avas  commissioned  (July  15,  1704) 
chief-justice  of  New  York  and  New  Jersey,  in  which  latter  province, 

'frhe  first  minutes  of  the  Supreme  Court  of  which  last  record  book  of  the  old  Court  of  Assize,  bound  in 

the  writer  has  any  knowledge  are  those  of  the  terra  parchment,  which  is  in  the  library  of  the  New  York 

commencing  April  4,  1093,  at  which  Chief-Justice  Smith  Ilistorical  Society, 
presided.    They  are  written  on  the  reverse  pages  of  the 


ONK  or  A 


I'KESENTED  BY   BELLOMONT  TO  COLuNEI.  ABUAHAM 
DE  PEVSTEB. 


62  HISTORY   OF   THE   BEXCH   AND    BAR    OF   NEW   YORK 

or  in  Philadelphia,  he  resided  at  tlie  time.  During  his  tenure  he 
claimed  to  liave  made  the  practice  of  the  courts  of  the  province  "  more 
conformable  to  the  practice  of  Westminster  Hall  than  any  other  of 
her  Magesty's  plantations  in  America."  On  his  death,  while  in  office, 
he  was  succeeded  by  Lewis  Morris  (March  13,  1715),  a  native  of  New 
York,  but  long  a  resident  of  New  Jersey,  where  he  had  been  a  con- 
spicuous figure  in  the  iwpular  opposition  to  Governor  Cornbury.  But 
his  pronounced  presbyterian  or  republican  partisanship  here,  and 
especially  his  dissenting  opinion  in  the  great  case  of  Governor  Cosby 
against  Rip  Van  Dam,  which  he  took  pains  to  print  with  an  ill- 
tempered  philippic  against  the  governor,  led  to  his  removal  in  1733,  to 
give  place  to  a  typical  high-prerogative,  anti-republican  native  of  the 
province,  James  De  Lancey,  than  second  judge  of  the  coui't ;  who  con- 
tinued in  the  chief- justiceship  until  his  death,  July  30,  1760.  His  suc- 
cessor, Benjamin  Pratt,  commissioned  November  11,  1761,  was  a  native 
and  resident  of  Massachusetts,  eminent  for  learning  in  the  annals  of 
that  colony,  but  treated,  at  the  outset  of  his  brief  career  here,  with 
great  indignity  both  by  his  associate  judges  and  by  the  leaders  of  the 
Ibar,  for  no  reason  apparently  but  that  he  was  a  non-resident,  and  had 
accepted  his  commission  ''during  pleasure"  instead  of  for  life  con- 
ditioned on  good  behavior.  He  died  in  office.  His  successor,  the 
eleventh  and  last  chief-justice,  Daniel  Horsmanden,  a  native  of  Kent, 
England,  had  been  an  associate  judge  of  the  court  since  January  24, 
1736  ;  he  was  advanced  to  the  chief-justiceship  March  16,  1763,  when 
he  was  over  seventy  years  of  age,  and  continued  in  office  until  his 
death,  after  the  Declaration  of  Independence,  on  September  20,  1778. 
William  Smith,  the  younger,  son  of  the  chief-justice  of  that  name 
above  mentioned,  who,  in  his  youth,  had  published  his  "History  of 
New  York,"  and  was  an  ardent  whig,  received  the  appointment  of  chief- 
justice  during  the  war,  when  he  became  a  loyalist,  but  it  is  doubtful  if 
he  ever  held  court ;  and  having  left  the  province  with  the  British 
trooi)s  at  the  close  of  the  war,  he  is  not  generally  accounted  one  of  our 
chief-justices.' 


ASSOCIATE   OK      PUISNE   JUDGES. 


'Personal  notices  of  these  men,  highly  ciistingnislicd 

in  their  day,  are  reserved  for  future  pages  of  this  work,     .  ,                             .    .        ,  ,.  ..   .„„. 

hMf  if  T>,      )     f/^,■,l,^  intoroafinrr  tn    ■      1           Y  »  «f  fi,       Tliomas  Johnson,         commissioned  May  1.5,  IfiHl 

.„.„  „    ,.    „       „      William  Smith,                         "  May  ],5,  KJill 

Stephen  Van  Cortlandt,         "  May  15,  ir.'.U 


but  it  may  be  found  interesting  to  give  liere  a  list  of  the 
judges  of  the  court  down  to  its  dissolution,  with  the 
dates  of  their  several  commissions, 


CHIEF-JUSTICES  OF  THE  SUPREME  COURT. 


William  Pinhorne,  "  >Iay  15,  1G91 

William  Pinhorne,  "  .\\<r\\  3,  1093 

Joseph  Dudley,          commissioned  May            15,  1691  Chidley  Brooke,  "  \\n\\  3,  1C93 

William  Smith,                     "  November  11,  1092  John  Lawrence,  "  Aiiril  3,1003 

Stephen  Van  Cortlandt,      '•  October      30,1700  John  Guest,  "  .lune  101)8 

William  Smith,                      "  November  35,  1700  Abraham  De  Peyster,  "  October  4,  109S 

Ab  aham  De  Pcyster,            "  January      21,1701  Robert  Walters,  "  August  5,1701 

William  Attwood,                 "  August          5,1701  John  Biidges,  "  June  14,1702 

William  Snutb,                      "  June              9,  1702  Kobcrt  Milward,  "  Ai)ril  5, 1703 

John  Bridges,                         "  April              5. 1703  TIh.ihhs  Wenliaiu,  "  Ai)ril  5, 1703 

Roger  Mompesson,              "  July             15,1704  .I:iiii.  s  p.- I.mim  ,  y,  "  June  24,1731 

Lewis  Morris,                       "  Man^h         13,171.')  l-ivd.  1 1.  k  riimpsc,  "  June  24,1731 

James  De  Lancey,                 "  August        21,1733  Fnikiirk  I'luliiise,  "  August  21,17.)3 

Benjamin  Pratt,  "  November  11,  1701  Daniel  Horsmanden,  "  January  24,  17.30 

Daniel  Ilorsmanden,           "  March         10,1703  John  Chambers,  "  J"ly  30,1751 


IIISIOKV    «)K    IIIK    Itli.NCll     AND    HAU    oK    NKU     VdKK 


To  write  the  liistoiy  ol"  (lu-  SiipiciiH'  Coiiil  of  Nfu  York  fortim 
eift-hty-live  yoars  ideceding  its  diswoliilioii,  on  the  Declaration  of  Inde- 
pendence, its  to  write  the  i)oliticaI,  and,  in  lar^e  measure,  the  social, 
history  of  the  j)eriod,  wliich  is  (init(!  heyond  the  [iiirpose  here,  'i'he 
reluctance  with  wliich  William  111.  consented  to  the  erection  of  this 
liigh  court  by  statute,  rather  than  by  a  mere  exe(Mitive  ordinance  revo- 
cable at  will,  is  made  apparent  by  the  proviso  of  the  act  creatin<^  it, 
which  limited  the  court's  existence  to  a  period  of  two  years.  As  noth- 
ing occurred,  however,  in  the  conduct  of  the  court,  dui'ing  the  first  two 
years  of  its  existence,  inimical  to  the  king's  ideas  of  governing  the 
province  by  royal  prerogative,  the  limitation  was  extended,  from  time 
to  time,  by  subsequent  legislation,  until  1G98.  The  court  was  tliere- 
aftei-  continued,  not  by  legislation,  but  by  the  governor's  proclamation 
of  Jaiuuiry  19,  1G99,  and  then,  finally,  by  the  order  of  the  governor  in 
council,  under  date  of  May  15  of  the  same  year.  This  assumption, 
on  the  part  of  the  crown,  of  a  right  to  erect  a  court  of  justice,  or  to 
revive  a  defunct  court,  gave  excuse,  on  at  least  one  notable  occasion, 
for  a  great  popular  outcry  against  the  court,  on  a  plea  to  the  court's 
jurisdiction  being  raised  in  a  j)ending  case;  the  contention  on  the  part 
of  counsel  being,  in  effect,  that  the  court  liad 
had  no  legal  existence  subsequent  to  the  expira- 
tion of  the  limitation  fixed  by  act  of  assembly; 
that  the  fundamental  principles  of  the  British 
constitution  were  as  controlling  in  New  York 
as  in  England,  and  that  as  the  king  could  not 
constitutionally,  of  his  own  will,  erect  and  main- 
tain a  court  of  justice  at  home,  he  could  not 
do  so  here.  The  king's  claim  of  right  to  rule 
by  prerogative  in  the  colonies,  any  further  than  in  England,  was 
contested  in  New-  York  mainly  by  the  lawyers,  in  pending  litigation 
at  the  bar  of  the  Supreme  Court,  and  this,  with  a  frequency  and  per- 
sistency unknown,  because  irncalled  for,  in  neighboring  colonies  which 
lived  under  the  guarantees  of  written  charters,  by  which  the  right  of 
government  by  prerogative  was  to  a  greater  or  less  degree  surrendered 
by  the  crown  to  the  people.  These  forensic  discussions  at  the  bar,  as 
they  occurred  from  time  to  time,  tilled  the  court-house  with  eager,  and 
sometimes  applauding  and  even  riotous  audiences;  they  were  subse- 
quently rehearsed  in  every  tavern  tap-room,  and  thus  was  begot  that 
familiarity  with,  and  stubborn  devotion  to,  the  underlying  doctrines  of 
institutional  liberty,  under  English  law,  which  became  characteristic  of 
the  province,  notwithstanding  the  diversity  of  nationalities  which,  from 


Daniel  florsraanden,  commissioned  July           28,  1753  Win.  Smith,  the  elder,  commissioned  March        16,  1703 

David  Jones,  ••             November  21, 1758  Robert  R.  Livingston,             "             March         16.  17ti3 

Daniel  Ilorsmanden,  '•             March        26,  1762  George  D.  Ludlow,                  "             December  14,  17<i0 

David  Jones,  "              March        31,1762  Thomas  Jones,                          "              September  2'.l,  17T3 

David  Jones,  "             March         16.  1763  Whitehead  Hicks,                   "             February    14,  1776 


64 


HISTORY    OF  THE   BEXCII   AND   BAR   OF   IfEW   YORK 


first  to  last,  made  up  its  population.  The  great  landlords — so-called 
lords  of  manors — and  the  rich  city  merchants,  always  in  control  of  the 
assembly,  were  as  apt  as  not,  according  to  their  interests,  to  be  leaders 
of  the  opposition  to  the  government,  in  its  endeavors  to  enforce,  in  the 
courts,  the  navigation  acts,  suppress  smuggling,  and  collect  the  crown's 
quit-rents.  As  between  the  assembly  which  granted  their  salaries,  and 
the  governor,  who  could  at  any  time  recall  and  revoke  their  commis- 
sions, the  judges  found  themselves,  more  than  once,  grievously  embar- 
rassed. Their  annual  stipends  and  their  tenure  of  office  were  equally 
uncertain.  All  of  them  were,  almost  of  necessity,  what  would  now  be 
called  politicians;  that  is,  participants  in  the  endless  disputes  between 
the  assembly  and  the  executive,  which  make  our  colonial  history  such 
tiresome  reading.  The  chief -justice  was  ex-officio  president  of  the  coun- 
cil, and  many  of  the  puisne  judges  were,  while  in  office,  its  members. 

They  were  therefore  legislators 
1w%^P5.  "  "   ^j:^^  __      as  well  as  judges,  and  not  infre- 

quently blocked  the  legislative 
efforts  of  the  assembly.  Chief- 
.1  ustice  De  Lancey  was  commis- 
sioned lieutenant-governor  by 
(ieorge  II.  in  October,  1747, 
and  a  vacancy  in  the  governor- 
sliii)  recurring  in  July,  1757,  he 
became  and  continued,  until  his 
death  three  years  later,  chief  ex- 
ecutive of  the  province,  besides 
being  its  chief-justice.     It  was 

™'''  """^  "  "  ' '"  "  ^'''  ''^^-  repeatedly  charged  against  the 

assembly,  controlled,  as  it  generally  was,  by  those  who  resented  any- 
thing like  a  strict  enforcement  of  the  navigation  acts,  and  an  honest 
collection  of  the  crown's  quit-rents,  that  it  attempted  to  control  the 
appointment  of  judges,  or  to  coerce  their  judicial  decisions,  by  with- 
holding their  salaries. 

Writing  to  the  Lords  of  Trade  (January  11, 17(51),  Lieutenant-Gov- 
ernor Colden  attributed  the  obstinacy  of  the  assembly  in  refusing 
salaries  to  the  judges  to  "  a  formed  design  of  undue  influence,"  and  a 
determination  "  to  have  no  chief-justice  unless  he  be  a  gentleman  of 
estate  in  this  province  " — a  position,  he  says,  which  "  takes  with  the 
people,"  but  in  his  opinion,  both  the  king  and  the  inhabitants  nuiy 
more  safely  trust  the  administration  of  justice  with  a  stranger,  who 
has  no  private  connections,  than  with  an  inhabitant.  "  Sure  I  am  that 
men  of  greater  abilities  may  be  found  out  of  the  province  than  in  it." 
To  yield  to  the  assembly  in  this  matter  would,  he  thinks,  afl"ect  dis- 
astrously the  whole  administration,  for  while  few  people  had  any 
dependence  on  the  governor,  "  a  chief-justice  has  an  influence  on  every 
man  in  it;  because  no  man  knows  when  he  may  have  a  dispute  at  law 


IllsroUV    OK     IIIK    HKNCII    AM>    ItAi;    ()!•     M.W     '^(iKK  O.l 

with  Ills  nci^Iiboiir."'  "11"  IIkmi,"  lie  (•oiit  iiiiics,  "  ;i  cliicr- just  icr  lor 
life,  with  lar^c  family  oonncclioiiis,  form  a  parly,  to  serve  aml)iliou.s 
or  interested  views,  the  governor  must  either  become  the  tool  of  this 
party  or  live  in  perpetual  contention.  'J'liis  is  not  a  mere  hypol  hesis;  we 
had  not  long  since  a  glaring  instance  of  it."  To  prevent  these  evils, 
he  urges  that  the  chief-justice's  salary  be  allowed  by  the  crown  out  of 
the  quit-rents  of  the  i)rovince,  and  thus  save  the  governor  from  llu' 
dilemma  of  appointing  according  to  the  dictation  of  interested  and 
ambitious  men,  or  of  leaving  the  i)rovince  without  a  court  of  justice.' 
The  "glaring  instance"  referred  to  was  the  conduct  of  the  assend)ly 
and  the  bar  on  tlie  anival  from  Massachusetts  of  the  new  chief -justice, 
Benjannn  Pratt,  who  had  been  commissioned  '"  (hiritifj  jiJcasmre^'' 
instead  of  (jood  behavior,  as  his  predecessor  I)e  Lancey  had  been. 
As  matter  of  fact,  De  Lancey's  original  commission  (September  14, 
1744),  like  those  of  all  his  predecessors,  ran  during  pleasure;  it  was 
not  until  eleven  years  afterward  that  the  governor,  by  way  of  compli- 
ment or  reward,  ])resented  him  with  a  new  commission,  running  during 
good  behavior — that  is,  for  life."  Nevertheless,  the  complacenc-y  of  the 
new  chief-justice  in  accepting  his  commission  on  a  condition  "  con- 
trary to  New  York  precedent,"  was  seized  upon  by  the  so-called  repub- 
lican faction,  then  in  control  of  the  assembly,  as  an  additional  weapon 
in  its  pending  controversy  with  the  party  in  power — the  party  "  sup- 
porting the  established  constitution";  though  in  truth  the  bestowal 
of  the  second  office  in  the  province  upon  a  stranger  was  far  from  being 
agreeable  to  either  party.  The  three  other  judges  of  the  court,  Daniel 
Horsmanden,  John  Chambers,  and  David  Jones,  all  of  whose  commis- 
sions were  in  abeyance  by  reason  of  the  death  of  King  George  II.,  not 
only  had  reason  to  be  disappointed  in  not  being  preferred  for  the  first 
place,  but  were  indignant  that  the  new  chief-justice  should  have 
accepted  his  commission  on  other  terms  than  for  good  behavioi'.  Judge 
Chambers  was  so  affronted  by  Pratt's  appointment  that  he  resigned 
his  commission  outright.  Judge  Horsmanden  and  Jones  refused  to 
accept  a  renewal  of  their  commissions  on  the  terms  offered.  The  situ- 
ation was  particularly  embarrassing  for  the  chief-justice  ;  for  the  Jan- 
nary  term  of  the  court  occurring  in  the  month  of  his  taking  the  oath 
of  office,  he  was  obliged  to  sit  alone  for  the  whole  term.  According  to 
a  contemporary,  he  was  "  unacquainted  with  the  practice  of  the  court 
and  the  laws  of  the  colony,  and  found  himself  so  perplexed  and  bewil- 
dered that  as  soon  as  the  term  ended  he  applied  to  Mr.  Colden,  the 
lieutenant-governor,  and  begged  that  the  bench  might  be  filled  up." 

The  assembly  had  passed  resohitions  severely  refiecting  npon  the 
chief-justice  for  accepting  his  commission  "  during  pleasure,"  and 
inveighing  against  Colden  for  refusing  to  grant  commissions  "  during 

'  N.  Y.  Col.  Docs.,  vii  ,  4fi3.  sioned  formerly  during  pleasure,  but  of  late,  "quamdiu 

"  Smith's  statement,  made  in  his  History  (published      bene  se  gesserint,"  is  not  verifiable. 
1757),  that  the  second  and  third  judges  were  commis- 


66  IIISTOKY    OF   THE   BENCH   AND   BAK   OF   NEW    YOKK 

good  behavior  " — both  of  them  being  declared  enemies  to  the  colony, 
to  the  government  and  the  constitution,  and  threatening  to  grant  no 
salaries  either  to  Golden  or  to  the  judges  unless  judicial  commissions 
were  to  run  during  good  behavior.  To  this  Golden  had  responded, 
that  he  was  willing  to  comply  with  the  assembly's  wishes  in  that 
regard,  and  thus  make  the  judges  independent  of  the  crown,  provided 
the  assembly  would  settle  upon  them  fixed  salaries  determinable  only 
on  the  expiration  of  their  respective  commissions,  thus  making  them 
as  independent  of  the  assembly  as  they  would  be  of  the  crown.  This, 
however,  they  were  not  willing  to  do.  But  after  the  fury  of  the  con- 
troversy had  ST3ent  itself,  the  lieutenant-governor  sent  for  the  other 
judges,  as  requested  by  the  chief -justice;  they  agreed  to  consult  their 
friends,  and  in  a  short  time  consented  to  accept  their  commissions  on 
the  terms  offered — that  is,  during  pleasure. 

The  contention  of  the  whig  lawyers  that,  by  English  law,  judges 
were  not  to  be  commissioned  for  years  or  a  term,  or  during  pleasure, 

was  not  now  heard  for  the  first 
time  in  the  province.'  It  had 
been  made,  by  waj'  of  a  plea 
to  the  jurisdiction  of  the  Su- 
preme Gourt,  twenty  five  years 
before,  in  the  famous  prosecu- 
tion for  criminal  libel,  at  the 
instance  of  the  governor,  of 
John  Peter  Zenger,  whose  trial 
before  Ghief-Justice  De  Lancey 
and  a  jury,  in  January,  1735, 
gave  rise  to  the  most  extravagant  expressions  of  public  feeling  during  its 
progress,  and  of  popular  demonstrations  of  joy  on  the  final  triumph  of 
the  defence.  It  appears  that  Zenger,  the  printer  of  the  New  York 
Weekly  Journal,  the  second  newspaper  published  in  the  province,  had 
published  at  the  supposed  instance  of  James  Alexander,  William  Smith, 
and  other  whig  lawyers  of  the  time,  a  series  of  papers  bitterly  if  not 
libelously  attacking  the  government,  and  its  supporters  in  the  assem- 
bly. "  Ballads "  in  ridicule  of  some  members  of  the  assembly  and 
council  were  also  issued.  Regarded  as  derogatory  to  the  dignity  of 
his  Majesty's  government  and  tending  to  raise  sedition  and  tumult, 
the  council  ordered  certain  numbers  of  the  pai)ers  in  which  the  obnox- 
ious articles  appeared,  and  also  the  ballads,  "  to  be  burnt  by  the  com- 
mon hangman."  The  assembly  paid  no  attention  to  the  council's 
request  that  it  join  in  asking  the  governor  to  offer  a  reward  for  the 
authors  of  these  seditious  libels.    On  an  order  of  the  council,  a  warrant 

1  As  matter  of  fact,  judges  in  England  had  always  should  be  during  good  behavior,  and  tlial  they  should 

been  commissioned  during  the  pleasure  of  the  crown,  be  removable  only  on  addresses  of  both  Houses  of  Par- 

until  the  passage,  in  iroa,  of  the  "Act  of  Settlement"  liament.     The  perniauence  of   their  tenure,  notwilh- 

(12  and  13  W.  HI.  c.  8),  which  provided  that,  after  the  standing  a  demise  of  the  crown,  was  further  secured  by 

termination  of  William's  reign,  the  judges'  commissions  1  Geo.  III.,  c.  23. 


fT:.  j^.     ^  . 

■""-^N 

^ 

^---r^.,A^;„    .^- 

«3p 

Tin   B\iTnn   IN  174t) 

iiisTui:v  OK   iiiK  iu;i\('ii  and  iiai:  ok  nkw  voitK  <>7 


THE 

New -York  Weekly    JOURNAL 


Comaining    ihc    frejbejl    Acl'viccs,    Foreign^  aad    Vomtpck. 


M  UN  DAT  November  13,  1735. 


Mr.  Zengrr. 
rNcert  the  ^fbllowln,  It^'our  next,    Ih^'UiSSS  V°,l""  ^ 


and  you'll  oblige  your  Friend, 

CATO. 

Jldlra  Umporum  felidtat  uhif-ntiri  qua 
vein,  &  qtut  feutratdicere  licit. 

Tacit. 

THE  Liberty  of  tbe  Prefs 
is  a  Subject  of  the  great- 
e/V  ImporUncc,  and  in 
which  every  Individual 
is  as  much  concern'd  as 
^c  is  in  any  other  Part  of  Liberty: 


th^ir  Sovere.gd,  the  fole  fupreamMk- 

'l  r  »>    ^^'  ^''"'^  '^^'"S  "o  Law  In 
thofe  Monarchies,  but  the  V/iU  of  th« 
Pnncc,    It  makes   it  neceiFary  for  his 
Mmidcrs  to  confult  his  Plcafure,   be- 
fore any  Thing  can  be  undcit9kcn : 
He   IS  therefore    properly   chnrgeabii 
with  the  Grievances  of  his  Siibiefls, 
and  what  the  Minifter  there  afts  bd;r,g 
in  Obedience  to  the  Prince,   he  ought 
not  to  incur  the  Hatred  of  the  People  ^ 
for  It  would  be  hard  to  impute  th.u  lo- 
him  for  a  Crime;,  jwhich  is  theFruitofi 
his  Allegiance,  and  for  refufing  which, 
he  might  incur  the  Penalties  of  Trea- 
fon.      Befides,   in  an  abfolute  Monar- 


Ti:crebre  it  will  not  be  improper  to  chy,  the  Will  of  the  Prince  being  the 

coniniunicnte  to  the  Publick  theSenti-  Law,aLibertyof  the  Prefs  to  complain 

inenrs  of  a  lite  excellent  Writer  upon  -'■'^-  ■** 

this  Poin'.    fuch  is  the  Elegance  and 


Pcrfpicuity  of  his  Writings  fuch  the 
inlmif  jblc  Fo'-ce  of  his  Rcafonini,  that 
it  will  be  diflicuk  to  fay  any  Thing 
new  that  he  has  not  faid.'  or  not  to 


of  Grievances  would  be  complaining 
againft  the  Law,  and  the  Conftitution, 
to  which  they  have  fubmitted,or  ha\'e 
been  obliged  to  fubmif,  and  therefore 
in  one  Scnfe,  may  be  faid  to  defcrve 
Punifhment.     So  that  under  an  abfo 


fey  tliat   muck  'worfc  which  he  has    lute  Monarchy,  I  fay,  fuch  a  Liberty 


faid 

There  are  cxo  Sorts  of  Monarchies, 
an  abfolute  and  a  limited  one.  In  the 
firft,  the  Liberty  of  thePrcfs  can  never 
be  maintained,  it  is  inconfiflent  with 
it  i  for  vC'hat  abfolute  Monarch  would 
fumn:  any  Subjed  to_  animadvert 
On  his  Aftions,  when  it  is  in  his  Pow- 
fcr  to  declare  the  Crime,  and  w  nomi- 
nate the  Puniflimcnt  >  This  would 
make  it  very  dangerous  to  exercifcfuch 
a  Liberty  Befides  the  Objcdt  againft 
wiiich  thole  Pens  inuft  be  direfted,  is 


IS  inconfiflent  with  the  Conftitution, 
having  no  proper  Subjeft  in  Politics, 
on  which  it  might  be  exercis'd,  and  if 
excrcis'd  would  incur  a  certainPcnnltv. 
But  in  a  limited  Monarchy,  a-.  Fn^ 
landk,  our  Laws  are  known,  lixcif 
and  eftablifhed.  They  are  the  ftreigh 
Rule  and  fure  Guide  to  dired  the  King, 
the  Minifters,  and  other  his  Subjeds  : 
And  therefore  an  Offence  againft  the 
Laws  is  fuch  an  Offence  againft  Ihe 
Conflitution  as  ought  to  receive  a  pro 
per  adequate  Pjunifhment  j  the  leverEi, 
Conliu 


68  IllSTOKY    OF   THE    BENCH    AXD    BAR   OF   NEW    YORK 

for  Zenger's  arrest  for  seditious  libel  was  issiied,  on  which  he  was 
arrested.  Brought  before  Chief- Justice  J)e  Laricey,  on  7iaJ>eas  corpus, 
his  counsel,  James  Alexander  and  William  Smith  the  elder,  both  lead- 
ers of  the  ijolitico-presbyterian  party,  then  in  opposition  to  the  govern- 
ment, objected  to  the  legality  of  the  warrant  on  which  the  prisoner  had 
been  committed,  and  asked  for  a  discharge,  or  admission  to  bail.  But 
the  bail  exacted  was  so  excessive,  in  view  of  the  affidavit  of  Zenger 
that  he  was  not  worth  forty  ])ounds,  exclusive  of  his  wearing  apparel 
and  tools  of  his  trade,  that  he  was  remanded,  though  had  he  or  his 
backers  not  been  so  willing  to  make  liim  a  martyr,  bail  in  plenty 
would  no  doubt  have  been  furnished  by  his  political  sympathizers. 
The  grand  Jury,  however,  refused  to  find  an  indictment,  whereupon 
Attorney-General  Bradley  on  January  28,  1735,  exhibited  an  informa- 
tion ex-officio  against  the  prisoner,  for  "  false,  scandalous,  malicious, 
and  seditious  libels,"  on  which,  in  the  following  July,  Zenger  was 
brought  up  for  trial.  But  his  counsel,  Alexander  and  Smith,  had  in 
the  i)receding  April  filed  an  exception  to  the  information  on  the 
grounds  (1 )  that  the  Supreme  Court  in  which  it  had  been  filed  was 
without  qualified  judges,  their  commissions  running  during  pleasure 
instead  of  during  good  heJiavior  ;  and  (2)  that  their  commissions,  such 
as  they  were,  had  been  granted  by  the  governor  (Cosby)  on  his  own 
authority,  without  the  advice  and  consent  of  the  council,  and  were 
therefore  void.  This  attack  iq^on  the  very  existence  of  the  court  was 
resented,  with  spirit,  by  the  chief-justice,  who  addressing  Smith,  said: 
"  You  have  brought  it  to  that  point,  sir,  that  either  we  nuist  go  from 
the  bench  or  you  from  the  bar."  Thei-eupon,  without  further  argu- 
ment, the  names  of  both  Smith  and  Alexander  were  ordered  stricken 
from  the  roll,  as  for  a  gross  contempt  of  court.  Neither  of  them  was 
permitted  to  resume  practice  until  the  next  year  when,  upon  the  death 
of  Governor  Cosby,  both  were  readmitted  to  the  bar,  and  Alexander 
was  recalled  to  his  seat  in  the  council. 

The  question  of  the  judges'  tenure  of  office  durante  bene  placito, 
instead  of  quamdiu  bene  se  gesserint,  seems  to  have  been  accepted 
as  settled,  after  the  troubles  attending  Chief-Justice  Pratts'  induction 
into  office  in  17G1.  His  successor,  second-judge  Ilbrsmanden,  the  last 
of  our  colonial  chief-justices,  accepted  a  commission  during  pleasure, 
and  died  in  office. 

But  a  more  serious  question  which  had  vexed  the  court,  and  given 
rise  to  the  wildest  expressions  of  popular  feeling  against  it,  under  the 
lead  of  the  whig  lawyers,  was  whether  the  Sui)reme  Court's  constitu- 
tion permitted  it  to  exercise  the  equity  powers  of  the  J^nglish  Court 
of  Exchequer.  The  opposition  to  the  jndges  sitting  as  barons  of  the 
exchequer,  at  chambers,  to  hear  matters  in  equity,  was  based  upon 
the  old  contention  that  no  coui't  could  legally  be  erected  here  except 
by  statute ;  that  exchequer-chamber  jurisdiction  was  not  conferred 
by  the  act  of  1G91,  or  by  any  subsequent  legislation,  but  was  assumed 


)|'     rilK    ItKNCIl     AN 


to  be  coiirt'iTt'd  l)y  iiifii'  ('X('ciili\('  ()i<liii:iiicr  ;  niul  LCovriiirriciit  Ity 
()i'(lin:iii('<'  ratlicr  llinii  l>y  l:i\v  \v:is  subversive  of  t  lir  cliri-islicd  i-i;ilits 
;iii(l  i)rivil('^^('s  of  the  pcoiilc.  as  Kiiulisli  siibjcds.  It  was  the  saiiw 
contctilion  wliicli  had  rioiii  time  lo  time  aroused  vioh'iit  oijpositiou  to 
llie  jtiiisdiclioii  claiiiKMl  by  t  lie  governor  and  coiiiicil,  sitting  as  the 
C'oiirt  of  Chancei-y,  uii(hn"  the  crown's  insti'uctions  to  his  governors. 
A  better  understanding  of  the  (controversies  in  the  Supivnie  (Jourt  over 
the  question  of  its  «H|uity  juiisdiction,  and  of  the  pi-odigious  excite- 
ment occasioiK'd  tlirongliout  the  ])rovinceby  tlie  trial  of  Cosby  <if/(iiiist 
Van  Dam  in  ATX't,  will  bt>  had  if  a  brief  account  of  tlie  Couit  of  Chan- 
cery is  first  given. 

CotTKT   0I<'  ClIANCERl. 

The  distinction  between  wluit  might  be  fitly  done  in  a  court  of 
law  and  in  a  court  of  equity — so  familiar  in  the  administration  of  jus- 
tice in  England— was  unknown  wherever,  as  in  New  Netherland,  the 
civil  law  prevailed.  The  need  of  having  a  separate  tribunal  to  supply 
the  defects  of  the  common  law,  and  to  furnish  remedies  in  classes  of 
cases  not  provided  by  it,  only  began  to  be  felt 
in  New  York  when  increase  of  wealth,  through 
a  growing  commerce  and  speculation  in  land 
grants,  with  their  attendant  attempts  to  found 
families,  which  soon  followed  the  English  occupa- 
tion, brought  the  art  of  conveyancing  into  greater 
use,  and  gave  rise  to  controversies  concerning 
trusts,  their  creation  and  execution,  and  other  like 
subjects  of  equity  jurisprudence  \vhicli  the  exist- 
ing courts  of  law  were  powerless  to  entertain.  In  a  city  so  purely 
commercial  as  New  York,  controversies  were  likely  to  arise,  involving 
the  dissolution  and  winding  up  of  partnerships,  accountings  betw^een 
principal  and  agents,  trustees  and  their  beneficiaries,  guardians  and 
wards,  which,  if  complicated,  the  machinery  of  the  law  courts  was  not 
suited  to  unravel,  or  was  thought  to  be  so. 

Under  the  proprietary  government  of  the  Duke  of  York,  his  gov- 
ernors had  assumed  to  act  as  chancellors,  under  the  authority  of  the 
Duke's  patent  and  his  ow-n  instructions  to  them,  but  in  1683,  when 
James  yielded  to  the  popular  demand  for  a  local  legislature,  a  Court 
of  Chancery  was  included  in  the  judiciary  scheme  which  was  then 
adopted.  It  was  to  consist,  as  theretofore,  of  the  governor  and  his 
council ;  the  ojily  effect  of  the  act  being  to  give  legislative  sanction  to 
a  jurisdiction  which  had  hitherto  been  exercised  under  the  communi- 
cated prerogative  of  the  crown. 

This  sanction  was  saved  from  the  general  wreck  of  Dongan's  legis- 
lation, by  an  act  of  the  first  assembly  called  under  authority  of  tlie 
new  king,  passed  jSIay  G,  1091,  which  conferred  jui'isdiction  in  equity 
upon  the  governor  in  council,  for  a  limited  term  of  seven  years  only. 


70 


HISTORY   OF   THE   BENCH    AND   BAR   OF   NEW    YORK 


From  and  after  the  expiration  of  this  term,  until  the  end  of  the  colo- 
nial period,  the  only  authority  for  the  exercise  of  equity  jurisdiction 
by  the  successive  governors  was  by  ordinance,  or  executive  order,  first, 
in  August,  1701,  and,  finally,  in  November,  1704,  after  a  suspension 
since  June  13,  1703.  From  first  to  last,  after  1698,  it  appears  to  have 
been  the  policy  of  the  crown  to  refuse  to  give  up  its  prerogative  claim 
to  equitable  jurisdiction,  or  to  submit  it  to  such  limitations  as  a  pro- 
vincial legislature  might  see  fit  to  impose ;  hence,  on  every  fit  occa- 
sion, or  whenever  the  political  exigency  of  the  time  called  for  some 
subject  of  complaint  calculated  to  arouse  the  commonalty,  this  alleged 
illegal  assumption  of  chancery  jurisdiction  was  seized  upon  by  the 
government  opposition.  These  repeated  outbreaks  of  wrath  by  the 
so-called  popular  party  were  either  the  occasion,  or  the  result,  so  far 
as  we  can  judge,  of  some  particular  case  of  a  disappointed  litigant, 


and  while  we  may  not  be  able  to  believe  that  these  controversies, 
spread  over  a  series  of  years,  are  not  always  free  from  a  suspicion  of 
interested  motives,  it  is  impossible  not  to  see  that,  at  bottom,  the  fitful 
contention  against  prerogative  power  in  New  York,  for  many  years 
before  the  Declaration  of  Independence,  prepared  the  people  for  a  ready 
acceptance  of  that  great  indictment.  The  general  ground  of  oppo- 
sition to  the  court  was  that,  being  founded  on  mere  prerogative,  per- 
sonal liberties  and  property  were  subject,  not  to  law,  but  to  the  con- 
science of  the  royal  representative  for  the  time  being  ;  they  were  made 
precarious  by  the  extortionate  fees  of  officers  in  no  way  under  the  con- 
trol of  the  provincial  assembly,  and  by  the  excessive  bail  exacted  by 
them  in  cases  of  ne  exeat  writs,  and  the  delays  of  justice  countenanced 
by  them,  through  "the  manifold  contrivances  of  lawyers,  by  their 
voluminous  Bills  of  Complaints,  Answers,  and  dilatory  pleas." 

An  early  expression  of  hostility  to  the  governor's  exercise  of  chan- 
cery jurisdiction  by  royal  prerogative  was  the  resolutions  adopted  by 


iiisidiiY  OK   I'lii';  in:Ncii  and  it.vi:  oi'  .m;v.'   ^oi.-k  71 

the  iisscmbly,   on    M ve   of   its    bcinu-    ])I()Io;^mic(1,    on    tlir   2r>lli    of 

Novcniber,  172.").  Tliesc  would  furnish  bctlta-  evidcincc  of  the  sincer- 
ity of  i)()puhir  lioslilily  to  tiu'  court,  if  we  did  not  know  the  ciicuni- 
istnnces  un(U'r  which  they  were  put  tlii<)n<,di  tlie  liousc?  in  the  hist  hoiiis 
of  the  session.  It  appears  thiit  Freih-rick  lMiili])se,  a  ^reat  hindiiol(h'r. 
and  a  merchant,  liad  been  sued  in  tlie  Supreme  Court  by  tlie  repre- 
sentative of  his  former  partner,  Codington,  tlien  (h'ceased,  on  a  bond 
for  £1,500,  aHeged  to  have  been  given  by  him  to  his  partner,  on  the 
iirm's  dissolution,  as  the  latter's  share.  Philij)se  intei-jmsed,  by  way 
of  answer,  some  sort  of  equitable  defence,  perhaps  a  mistake  in  the 
accounting  had  by  the  partners  themselves,  with  the  object,  it  was 
asserted,  of  ''  removing  the  suit  into  chancery." '  His  plea  being  over- 
ruled, and  judgment  given  against  him  on  the  bond,  in  the  Su])reme 
Court,  he  tiled  a  bill  in  chancery  to  have  the  bond  canceled,  the  account 
of  the  partnershij)  oiiened  and  restated.  The  cause  was  carefully  tried 
before  Grovernor  l^uinet,  but  the  plaintiffs  evidence  was  not  sufficient 
to  convince  the  court  that  "a  man  of  Mr.  Philii^se's  sense  and  expe- 
rience in  business  would  give  his  bond  for  £1,500  to  a  wan  who  owed 
him  a  greater  sum  at  the  same  time,"  and  his  bill  was  dismissed. 
Philipse  was  at  that  time  speaker  of  the  assembly,  and  in  resentment 
for  his  treatment  by  the  Court  of  Chancery,  he  is  said  to  have  induced 
the  assembly's  committee  on  grievances  to  report  to  the  assembly  cer- 
tain resolutions  already  drawn  up  by  his  own  friends,  which  he,  as 
speaker,  put  to  an  immediate  vote  and  caused  to  be  carried  by  the 
house.  The  assembly's  minutes,  under  date  of  November  26,  1727,  are 
worth  giving  in  full,  as  follows : 

Die  Sabbat:  25th  November  1727. 

Coll.  Hicks  from  the  Committee  of  Greivances  reported  that,  as  well  by  the 
Complaints  of  several  people  as  by  the  General  Cry  of  his  Majesty's  Subjects  In- 
habiting this  Colony,  they  find  that  the  Court  of  Chancery  as  Lately  assumed  to 
be  Sett  up  Here  renders  the  Libertys  and  properties  of  the  said  Subjects  extreamly 
Pi-ecarious,  and  that  by  the  violent  measures  taken  in  &  allowed  by  it  some  have 
been  ruined,  others  obliged  to  abandon  the  Colony,  and  many  restrained  in  it  either 
by  Imprisonment  or  by  Excessive  bail  exacted  froni  them  not  to  depart  even  when 
no  manner  of  suits  depending  ag't  them  and  therefore  are  of  opinion  that  the 
Extraordinary  proceedings  of  that  Com-t  and  Exorbitant  fees  and  charges  Coun- 
tenanced to  be  Exacted  by  the  Officers  and  Commiesioners  thereof  are  the  greatest 
greivance  and  oppression  this  Colony  has  ever  felt  and  that  for  removing  the  fatal 
consequences  thereof  they  had  come  to  several  resolutions  which  being  read  were 
approved  by  the  House  and  are  as  follows : 

Resoh'<e(i,  That  the  Erecting  or  Exercising  in  this  Colony  a  Court  of  Equity 
or  Chancery  (however  it  may  be  Termed)  without  Consent  in  Genex'al  Assembly  is 
unwarrantable  and  Contrary  to  the  laws  of  England  and  a  Manifest  oppression  and 
greivance  to  the  subjects  and  pernicious  Consequence  to  their  Libertj-s  and 
propertys. 

Resolred.  that  this  House  will  at  their  next  meeting  prepare  and  pass  An 
Act  to  declare  and  adjudge  all  orders  ordinances  Devisees  and  proceedings  of  the 

'  C'olden's  Letters,  X.  Y.  Hist.  So.  pub.  (18G8),  213. 


72         HISTORY  OF  THE  BENCH  AND  BAR  OF  NEW  YORK 

court  so  assumed  to  be  Erected  and  Exercised  as  above  mentioned  to  be  Illegall 
N  uU  and  void  as  by  Law  and  of  right  they  ought  to  be. 

Resolved,  that  this  Hcmse  will  at  the  same  time  take  into  consideration  whether 
it  be  necessary  to  Establish  a  Court  of  Equity  or  Chancery  in  this  Colony  in  whom 
the  Jurisdiction  thereof  ought  to  be  vested  and  how  far  the  powers  of  it  shall  be 
prescribed  and  Limitted  examined  and  Compared  with  the  Journal  of  the  General 
Assembly. 

G:  Ludlow  CI. 

On  the  formal  presentation  of  this  minute  to  the  governor  and 
council,  the  latter  forthwith  made  a  minute  that  they  looked  upon  the 
assembly's  resolves  "as  unwarrantable  and  highly  Injurious  to  his 
Majesty's  Prerogative  for  the  recovery  of  his  just  Rights  in  this 
Province  and  to  the  Libertys  and  propertys  of  the  Subject,  who  would, 
if  the  said  Resolutions  were  of  any  force,  be  thereby  deprived  of  all 
remedj'S  in  Equity  which  tliey  are  entitled  unto  by  the  Laws  and 
fundamental  Constitution  of  Great  Brittain."  They,  in  addition, 
entered  an  order  directing  that  "  this  Minute  be  published  and  printed 
and  dispersed  throughout  this  Province  And  that  the  Gentlemen  of 
this  Board  or  any  five  of  them  be  a  Committee  to  make  their  observa- 
tions on  the  said  Resolves  &  that  they  may  report  their  opinion 
thereon  to  this  Board." 

At  a  meeting  of  the  council,  August  30,  1728,  the  committee,  of 
which  Cadwalader  Colden  was  chairman,  made  its  report  to  the 
governor  in  council,  in  which,  however,  they  content  themselves  with 
reflecting  upon  the  motives,  and  the  irregular  manner  of  passing  the 
resolutions  rather  than  answering  the  alleged  grievances,  and  wishing 
the  assembly's  resolves  might  never  affect  "  the  propertys  &  Libertys 
of  the  people  more  than  any  Act  of  Council."  It  is  declared,  however, 
"that  unless  such  attempts  as  this  be  Effectually  discouraged.  The 
Authority  of  his  Magestys  Courts  may  often  be  in  danger  from  the 
Artifices  of  popular  men  That  Judges  may  be  frightened  even  in  Cases 
where  the  King  is  highly  concerned  from  giving  Judgment  against  a 
Leading  man  of  An  Assembly  and  that  the  poor  may  have  no  means 
Left  of  Defending  or  receiving  their  right  when  Invaded  by  rich  & 
powerful  men.  If  such  an  open  Invasion  of  the  Kings  prerogative 
should  now  be  passed  wdth  neglect,  any  Discourse  of  it  for  the  future 
may  become  the  Test  of  the  people."  Finally,  "  we  must  Zealously 
Endeavor  to  discourage  all  attempts  on  the  Royal  prerogative  &  the 
Safety  of  the  people  in  their  properties  &  Liberties  from  whatever 
hands  they  come.  The  prerogative  of  the  Crown  is  so  closely  inter- 
woven with  the  Safety  of  the  people  that  no  Attempt  can  be  made 
upon  one  without  manifest  Injury  to  the  other." 

Attacks,  however,  continued  to  be  made  upon  the  governor's 
exercise  of  equitable  jurisdiction  under  the  royal  prerogative.  In 
1735,  on  Governor  Cosby's  refusal  to  dismiss  a  bill  filed  by  Sir  Joseph 
Eyles  and  others  to  vacate  a  certain  patent  of  land,  on  a  plea  being 
interposed  to  his  jurisdiction,  the  defendants  made  their  grievance 


1II^ 


i:v    t>K 


iir:  III  Ncii   AM) 


M.w   \t>\: 


r.i 


known  to  the  assciiiblv,  Willi  llicn'siilt  lli:it  :i  rrsuliil  ion  w:is  ;iii(.|.lr.l 
NovcnilxM' •!,  17;'.:.,  ■• 'Phut  a  Court  of  Olianccry,  in  this  prov  iiicr  in  tin- 
hands,  or  nndfi'  the  exorcise,  of  llu>  <i;o\cinonr,  withont  conscnl  in 
general  assembly,  is  contrary  to  hiw,  unwarrantable,  and  of  diin^erons 
consequence  to  the  liberties  i\:  proi)erties  of  the  peoiilc."  When  in 
1737  the  assiMnhly  ])asse(l  a  bill  "  for  establishing- iV  Re<;n hit in.:^  Courts 
to  Deternnne  (Causes  of  Forty  shillings  &  un(U>r,*'  it  made  bold,  on 
sendins;  it  to  the  "governor  and  council,  for  approval,  to  a<;ain  call 
attention,  in  tem])erate  lan<iuage,  to  the  jijeneral  desire  of  haviiif;  all 
courts  of  i^-eneral  jurisdiction  establislied,  and  their  several  jui-isdictions 
and  powers  appointed  and  limited,  by  tlie  legislature,  and  not  left  any 
loni:;er  to  the  uncertain  exercise  of  prerogative  power.     They  pointed 


KLVN  PERRT. 


out  that  it  had  been  the  constant  practice  in  England  for  Parliament 
to  erect  new  courts,  and  to  abolish  or  alter  old  ones,  and  no  king  ever 
conceived  that  thereby  his  just  and  legal  prerogative  was  in  the  least 
diminished  ;  and  here,  in  ^New  York,  the  legislature  of  1691,  at  the 
instance  of  Governor  Sloughter,  had  erected  courts,  and  subsequent 
governors  had  consented  to  similar  legislation,  but  none  of  them 
ever  imagined  he  was  giving  up  the  prerogative  of  his  master  in 
assenting  thereto,  and  it  was  never  learned  that  they  were  censured 
for  doing  so.  What  they  complained  of  was,  that  the  governor  "  never 
would  apj)ly  for  an  act  establishing  a  court  for  the  determination  of 
small  causes,"  but  that  court  had  been  erected  by  executive  order  in 
council,  as  the  Court  of  Chancery  had  also  been,  notwithstanding  its 
original  creation  by  act  of  the  legislature,  "  in  another  manner."    An 


74         HISTORY  OF  THE  BEXCH  AND  BAR  OF  NEW  YORK 

appeal  is  then  made  for  the  approval  of  the  bill  for  the  court  for  small 
causes  therewith  submitted,  but,  in  view  of  the  notorious  dissatisfac- 
tion which  a  court  of  chancery  erected  by  ordinance  and  not  by  statute 
had  given  the  generality  of  the  people,  as  manifested  by  repeated 
resolves  of  the  general  assembly,  and  as  often  as  made  contemptuously 
disregarded  by  successive  governors,  the  hope  is  expressed  that  the 
long  contention  between  the  governor  and  the  assembly  on  the  subject 
might  be  ended  by  establishing  a  court  of  chancery,  and  other  courts, 
by  act  of  the  legislature — a  course  which,  being  indisputably  legal, 
could  not  be  destructive  of  his  Majesty's  prerogative.  It  was  broadly 
hinted  that  even  a  court  created  by  statute  would  not  be  satisfactory 
to  the  people  if  it  was  to  be  composed,  as  heretofore,  of  the  governor 
and  council,  for  the  history  of  the  court,  as  they  had  managed  it,  had 
proved  the  court  "  of  no  use  to  the  publick  or  benefit  to  the  governors  ; 
few  of  them  had  talents  equal  to  the  task  of  a  chancellor  which  they 
had  undertaken  to  perform,  so  it  was  executed  accordingly  ;  some  of 
them  being  willing  to  hold  such  a  court,  others  not,  according  as  they 
happened  to  be  influenced  by  those  about  them  ;  so  that  were  it 
really  established  in  the  most  legal  manner  (as  it  was  not)  yet  being  in 
the  hands  of  a  person  not  compellable  to  do  his  duty,  it  was  so 
managed  that  the  extraordinary  delays  and  fruitless  expense  attend- 
ing it  rendered  it  not  only  useless,  but  a  grievance  to  the  inhabitants, 
especially  those  who  were  so  unfortunate  as  to  be  concerned  in  it ; 
which,  we  hope  you  think  with  us,  it  is  high  time  should  be  redressed."  ' 
The  governor  and  council,  thus  addressed,  evidently  did  not  think  with 
the  assembly  on  the  subject  of  a  statutory  court  of  chancery,  although 
the  bill  for  the  court  for  small  causes,  after  amendment,  was  finally 
assented  to.  To  his  notice  of  this  address  given  by  Smith,  writing  in 
1757,  the  writer  adds  that  "  from  this  time  the  chancery  was  un- 
attacked  by  the  assembly,  but  the  business  transacted  in  it  is  very  in- 
considerable." In  his  opinion,  however,  "a  court  of  equity  is 
absolutely  necessary  for  the  due  adminstration  of  justice,"  though 
few,  he  thinks,  "  will  be  ambitious  of  the  chancellor's  office,  as  they 
have  not  the  assistance  of  a  master  of  the  rolls." ' 

Exchequer  Jurisdiction. 

It  will  be  noticed  that  the  hostility  of  the  popular  party  to  the 
assumed  chancery  jurisdiction  of  the  governor  and  council  was  due  to 
the  crown's  denial  of  the  exclusive  right  of  the  assembly  to  erect  its 
own  courts  and  fix  the  limits  of  their  jurisdiction,  though  any  court 
exempted  from  the  rules  of  common-law  procedure,  as  courts  of  equity 
were  supj)osed  to  be,  was  always  and  everywhere  in  the  American 
colonies  regarded  with  distrust.     It  is  not  surprising,  therefore,  that 

'  Smith,  Hist,  of  N.  Y.,  ed.  of  1814,  386.  alleged  raisstateineuts  of  fact  to  correct,  which  he  pro- 

*  When  Smith's   Uistory  was  published  Lieutenant-     ceeded  to  do  in  a  series  of  letters  to  his  son  only  re- 
Governor  Golden  saw  many  things  in  it  to  criticise,  and     cently  published.    N.  Y.  Hist.  So.  fund  jub.  (18(i8). 


iiisi'(ii;v   (»!•■   iiii';  iti:N(ii   am>   kak  ni    m  \\    \(ii;k  7i) 

cvci-y  MliiMiipt  of  (lit'  Su])!!'!)!!'  Coiiil  to  cxcicisc  ('(jiiity  powcis,  (lioii^rli 
in:i(l<^  under  the  ^uise  ol"  exclicqucr  business,  should  cxcilr  :iii  iiisi;itit 
and  ])ersist('nt  opposition  on  the  i)art  of  the  \\lii,<;-  l»ai\  tliau  wliidi 
notliin*::  was  surer  to  receive  popular  applause. 

The  lirst  exchequer-chainber  business  alieinpted  in  (he  Supreme 
Court  was  made  by  Chief-.Iuslice  Attwood  shortly  after  his  arrival  here 
in  1701,  Lord  liellomont  beiui;  <jjovernor.  The  latter  had  come  out 
under  special  instructions  to  sui)press  the  illicit  trade,  not  to  say  iiira(;y, 
at  that  time  largely  engaged  in  by  the  merchants  and  traders  of  New 
York.  To  assist  him  in  this  arduous  task,  a  new  chief-justice  (Att- 
wood) and  an  attorney-general  (Sampson  Shelton  IJroughton)  had  been 
respectively  commissioned  directly  by  the  king — no  resident  being 
trusted  in  this  emergency — to  assist  in  stamping  out  the  evil.  The 
seat  of  corruption  seems  to  have  been  in  the  (Jourt  of  Admiralty. 
Attwood  was  accordingly  armed  with  a  commission  as  Judge  of  Ad- 
miralty for  New^  England,  New  York,  and  New  Jersey,  in  addition  to 
the  chief-justiceship  of  New  York.  On  his  arrival,  in  the  sunmier  of 
1701,  he  learned  of  the  case  of  a  vessel  which,  seized  for  lack  of  registry 
under  the  navigation  acts,  had  been  discharged  by  the  admiralty  judge 
whom  he  succeeded.  What  was  wanted  was  some  jurisdiction  some- 
where to  prohibit,  by  writ,  the  execution  of  the  decree  discharging  the 
vessel  until  the  admiralty  proceedings  coukl  be  reviewed.  But  there 
was  no  court  in  the  province  having  an  unquestioned  right  to  issue  a 
writ  of  prohibition  against  the  decree  of  the  Admiralty  Court.  The 
chancery  jurisdiction  of  the  governor  was  questioned ;  the  Supreme 
Court  w^as  claimed  by  the  lawyers  to  be  a  court  of  law  only.  He  con- 
cluded, however,  that,  by  its  constitution,  as  gathered  from  the  original 
act  of  1691,  and  the  subsequent  ordinances  continuing  the  court,  the 
Supreme  Court,  sitting  as  a  Court  of  Exchequer,  had  power,  by  writ  of 
prohibition,  to  prevent  the  discharge  of  the  vessel  and  the  consequent 
defeat  of  his  Majesty's  forfeitures,  under  the  navigation  acts,  pending 
an  inquiry  by  it  into  the  legality  of  the  vessel's  discharge.  He  there- 
upon, assuming  to  sit  as  a  baron  of  the  exchequer,  directed  "  a  sugges- 
tion to  be  exhibited  to  it  for  a  prohibition  to  the  Conrt  of  Admiralty 
upon  its  sentence  in  that  matter."  But  as  "  one  of  the  persons  designed 
for  a  judge  in  the  Supreme  Court  had  given  the  obnoxious  sentence  in 
favor  of  the  ship,"  and  the  other  "  was  a  merchant  who  might  be 
concerned  in  interest,  the  Governor  thought  fit  to  suspend  the 
granting  their  Commissions  till  this  matter  should  be  over  in  the 
Supreme  Court,  and  therefore,"  he  writes,  "  the  enclosed  Ordinance 
was  made  empowering  me  alone  to  determine  this  matter."  In  justifi- 
cation of  his  assumption  of  this  extraordinary  jurisdiction,  Attwood 
assures  the  Board  of  Trade  that  the  matter  "  had  been  solemnly  argued 
by  Council  on  both  sides,"  that  he  had  taken  due  time  to  compare  the 
authorities  cited  to  him,  and  to  collect  others  which  are  produced  at 
large  in  his  "  long  argument "  (enclosed),  given  on  his  granting  the 


76 


HISTORY  OF  THE  BENCH  AND  BAR  OF   NEW  YORK 


writ  of  prohibition.'  Notwithstanding  a  prompt  apjieal  directly  to  the 
king  by  the  vessel's  owners,  '*  men  of  good  estates,"  as  he  had  reported, 
he  proceeded  to  try  the  crown's  claim  to  a  forfeiture.  The  captain 
refused  to  appear,  though  "  his  former  attorney  offered  several  things, 
as  amicus  curice,  principally  the  pendencj"  of  the  appeal."  On  the 
facts  found  a  forfeiture  was  declared,  under  which  the  vessel  was  sold 
at  i^ublic  auction,  to  the  consternation,  we  may  suj^pose,  of  the  "  men 
of  good  estates  "  engaged  in  the  i^revailing  illicit  trade. 

It  is  not  certain  that  Attwood's  exercise  of  equity  jurisdiction  in 
this  instance  was  followed  as  a  precedent  by 

any  of  his  successors,  until  the  case  of  Governor  OocAy  V-ay^  do/rvx, 
Cosby  against   Rip   Van  Dam  arose  in  1733, 

when  Lewis  Morris  was  chief-Justice,  with  De  Lancey  and  Philipse 
associate-judges. 

The  suit  was  brought,  shortly  after  his  arrival,  by  Governor  Cosby, 
who  had  been  appointed  to  succeed  Governor  Montgomerie,  who  had 
died  here  in  July,  1731,  and  on  whose  death  Rip  Van  Dam,  as  senior 
member  of  the  council,  became  acting  governor.  Van  Dam  had  taken 
to  his  own  use  the  whole  of  the  governor's  allowance  by  way  of  salary, 
for  the  period  intervening  between  Governor  Montgomerie's  death 
and  the  arrival  of  his  successor,  about  a  year.  The  new  governor 
claimed  that  by  the  terms  of  the  king's  order  in  council,  made  May 
31,  1732,  soon  after  his  ajjpointment,  one- 
half  the  governor's  salary  for  the  period 
in  question  had  been  granted  to  him. 
On  Van  Dam's  refusal  to  recognize  the 
new  governor's  demand  on  him  to  turn 
over  any  portion  of  the  salary  he  had  ap- 
propriated, a  suit  was  instituted  by  Cosby 
in  the  Supreme  Court  for  an  accounting 
instead  of  an  ordinary  action  on  the  case 
upon  an  indebitatus  assumpsit  at  com- 
mon law.  The  suit  could  not,  with  de- 
cency, be  brought  in  the  Court  of  Chan- 
cery, so-called,  of  which  the  plaintiff,  being 
governor,  was  ex-officlo  chancellor.  To 
give  some  warrant  of  authority  for  the 
chief-justice's  theory  of  the  Supreme 
Bii-  VAN  DAM  Court's  equity  jurisdiction,  the  governor 

promulgated  an  ordinance  (December  4, 
1Y32)  enabling  its  judges  to  sit  as  the  Court  of  Exchequer.  Van  Dam, 
a  city  merchant,  was  closely  allied  with  the  so-called  presbyterian  or 
whig  faction  ;  his  counsel  were  James  Alexander  and  William  Smith, 
the  idols  of  that  faction,  and  public  feeling  over  the  case  was  wrought 
up  to  a  state  of  excitement  quite  inexplicable  to  later  generations. 

1  Attwood  to  Board  of  Trade,  October  20,  ITOl,  N.  Y.  Col.*Docs.,  iv.,  921. 


IIISTOUY    OK    llll';    ItK.NClI    AM)    ItAi;    ()!•    .M:\\     VOKK  77 

'rii(>  coll  I  (Ml  I  ion  of  counsel  lie  fore  A  (I  wood  in  I  7"!  wiis  nou  iciifwi-d 
in  I7;5;)  in  tlio  \'an  Duni  case,  to  wit:  that  to  erect  a  Couit  of  Kxclie(|- 
ner  or  any  other  court,  or  to  extend  an  existing  court's  jurisdiction, 
willioiit  an  act  of  t|ie  assembly,  was  an  act  ol"  arbitrary  power  ;  that  no 
court  of  eiiuity,  or  of  any  other  jurisdiction,  could  be  legally  estab- 
lished except  by  prescription  or  an  act  of  the  legislature;  that  arbi 
trary  power,  though  "  let  in  but  at  a  back  door,"  was  a  menace  to  every 
possession  a  man  could  call  his  owu — all  would  be  "  at  the  will  and 
disposal  of  his  tyrannical  owner."  So  great  was  the  ])opular  intei-est 
in  the  trial  from  day  to  day  that,  as  we  are  told,  "  the  Exchequer  Court 
bell  scarce  ever  rung,  but  the  city  was  all  in  confusion."  Tlie  court 
having  sustained  its  exchequer  jurisdiction  in  equity,  by  the  votes  of 
De  Lancey  and  Philipse,  second  and  third  judges,  as  against  Morris, 
C.J.,  dissenting,'  the  tumult  arose  to  greater  lieights.  The  assumed 
power  of  tlie  governor  to  erect  a  new  court  by  an  executive  ordinance 
was  made  wliat  would  now  be  called  an  "issue"  in  the  next  election 
of  representatives  in  the  assembly.  The  ex-chief-justice,  who  had  been 
turned  out  of  otfice  by  the  governor,  procured  his  election  as  represen- 
tative of  AVestchester  county,  and  at  once  assumed  the  oi)po8'ition 
leadership  in  the  new  assembly  convening  in  the  sj)ring  of  173-i.  Peti- 
tions "  from  several  parts  of  the  province  "  W(n-e  addressed  to  the 
assembly  in  which  the  signers,  asserting  themselves  "  to  be  entitled  to 
the  liberties  of  Englishmen,"  protested  that  any  court,  and  "  especially 
the  Court  of  Equity  lately  erected  in  the  Supreme  Court  of  this  Prov- 
ince," was  "  a  grievance  and  destructive  to  the  liberties  of  the  people, 
as  it  is  now  constituted";  that  is,  by  executive  ordinance  instead  of 
legislative  act.  The  assembly  decided  to  hear  counsel  on  the  subject, 
and  accordingly  William  Smith,  who  had  appeared  for  Van  Dam  in 
Cosby's  case,  and  Joseph  Murray,  the  recognized  leader  of  the  bar  and 
in  sympathy  with  the  theory  of  prerogative  government,  were  heard  at 
length  in  the  presence  of  a  great  audience.  Their  arguments— which 
the  assembly  subsequently  ordered  to  be  printed  and  distributed— are 
worthy  of  a  fuller  notice  than  can  be  given  here.  The  debated  issue 
was,  at  bottom,  the  same  that  arose  forty  odd  years  later  between  the 
United  Colonies  and  the  British  Parliament,  and  it  may  well  be  doubted 
whether  the  American  doctrine  of  home  rule,  which  found  its  ultimate 
expression  in  the  Declaration  of  1776,  ever  had  fuller  or  clearer  utter- 
ance than  it  had  in  the  New^  York  Assembly  in  1734.  The  effect  was 
a  popular  veto  upon  any  crown-made  courts  in  New  York,  for,  after 
Cosby  against  Yan  Dam,  we  hear  no  more  of  the  Supreme  Court's 
equity  jurisdiction.  About  nine  years  later,  in  1742,  "  an  act  for  regu- 
lating the  pa^Tnent  of  quit- rents  "  gave  the  Supreme  Court  jurisdiction 
for  their  recovery,  thus  establishing,  in  effect,  if  not  in  name,  an  ex- 

'  His  opinion  was  printed  in  a  folio  tract  of  13  pp., en-  Causes  in  the  Court  of  Equity.    In  a  letter  addressed 

titled!  "The  Opinion  and  Argument  of  the  Chiof-Jus-  by   Lewis    Morris    to   Governor    Cosby,    New   York: 

tice  of  New  York  concemina;  the  Jurisdiction  of  the  Printed  and  sold  by  J.  P.  Zenger,  17:33." 
Supreme  Court  of   the   said    province   to  determine 


78  HISTORY   OF   THE   BENCH    AXD    BAR   OF   NEW   YORK 

chequer  branch  of  the  Supreme  Court.  Tliis  jurisdiction,  inherited  by 
the  Supreme  Court  of  the  state,  was  not  taken  away  until  December. 
1828.  It  is  not  doubted  that  in  cases  at  law,  where  the  examination  of 
a  long  account  was  involved,  the  Supreme  Court  never  declined  juris- 
diction for  that  reason,  but  exercised  the  exchequer-chamber  power  of 
ordering  a  reference  to  an  examiner  or  referee  to  try  the  cause. 

Divorce  and  Pkobate  Jurisdiction. 

For  more  than  one  hundred  years  before  the  adoption  of  the  first 
constitution  of  the  state,  and  for  many  years  thereafter,  judicial  dis- 
solution of  marriage  was  unknown.  It  was  not  until  1787  that  the 
legislature  of  the  state  authorized  the  then  newly  erected  Court  of 
Chancery,  on  a  bill  filed,  to  pronounce  divorces  a  vinculo,  and  then 
only  in  cases  of  adultery.  Before  that,  a  special  act  of  the  legislature 
was  the  only  means  of  effecting  a  divorce.'  There  is  reason  for 
believing  that  in  the  first  period  of  the  English  colonial  period  before 
the  Revolution  of  1688,  judicial  divorces  by  the  decree  of  the  governor 
were  not  unknown.  Thus,  Governor  Lovelace  in  1071  entertained  an 
application  for  a  divorce,  on  the  ground  of  the  wife's  adultery,  which 
he  could  only  have  done,  if  he  cared  to  act  legally,  on  the  theory 
that  the  Dutch-Roman  law  allowing  judicial  divorces  had  survived  the 
conquest,  and  not  being  repugnant  to  English  law  was  the  then  law  of 
the  colony.''  The  lack  of  such  a  beneficent  jurisdiction  appears  to 
have  been  deplored  in  New  York,  and  parties  wanting  divorces  were 
compelled  to  resort  to  the  New  England  courts.  Lieutenant-Governor 
Colden,  writing  in  1759,  says  that  the  power  to  grant  divorces  which 
the  early  governors  of  the  province  had  taken  on  themselves  had  been 
disused  since  the  Revolution  of  1688,  and  there  was  no  court  which 
could  give  this  remedy,  "  though  in  neighboring  colonies  a  divorce  is 
more  easily  obtained  than  perhaps  in  any  other  Christian  country." 
He  then  adds :  "  Query  whether  this  may  not  be  for  the  advantage  of 
a  new  country  which  wants  people.  It  is  certain  that  the  natural 
increase  of  people  in  New  England  has  been  very  great,  perhaps  more 
than  in  any  other  of  the  English  Colonies."  ' 

Jurisdiction  of  probates  and  the  administration  of  decedents'  estates 
prior  to  Dongan's  time  (1086)  was  exercised  by  the  Court  of  Sessions  in 
each  of  the  three  ridings  into  which  the  province  was  divided,  the 
court  consisting  of  the  justices  of  the  peace  within  the  riding.  In  the 
city  of  New  York,  however,  the  Mayor's  Court  exercised  this  juris- 
diction. In  all  cases  of  estates  exceeding  £100  in  value,  their  proceed- 
ings upon  a  probate  or  administration  on  intestacy  were  certified  and 
returned  to  the  provincial  secretary's  office  where  they  were  recorded. 
All  letters  testamentary  or  of  administration,  as  the  case  might 
require,  were  issued  by  the  governor  under  the  great  seal,  as  well  as 

>  Kent,  Comm.,ii.,97.  "^  Uiinlap's  Hist.,  i.,  App.  '  Coliipn's  Letters,  N.  Y.  Hist.  So.  pub.  (lH(i8),  187. 


HIsroKV    OF     I'lIK    1U;N(II     .\M>    HAK    <»!•'    Ni:\V     VOKK 


70 


liiiiil  (l<>cr(M\s  in  Ciisos  of  accoiiiiliiig  l)y  personal  icpicscnlalivrs.  In 
one  (lase,  at  least,  (lovcrnor  Andi-os  <>;i-ant('(l  letters  on  his  own  anthor- 
ity,  without  any  ])roc'oo(lin^s  in  conit.  By  the  instructions  which 
(i()\('rnor  Dongan  brouj^ht  out  in  JdHC),  In^  was  (lirect(>(l,  amon^  othcu- 
thiniis,  to  see  tliat  the  ecch'siastical  jui'isdiction  of  the  Ai-chbislioj)  of 
Canterbury  should  take  place  in  the  province,  "as  farr  as  conveniently 
may  bee,"  except  the  collating  of  benelices,  the  granting  of  marriage 
licenses,  and  the  probate  of  wills,  which  were  reserved  to  the  gov- 
ernor ;  and  in  a  similar  letter  of  instructions  to  Slough ter,  in  1(589,  the 
ecclesiastical  jurisdiction  of  the  Bishop  of  London  was  added.'  Until 
the  passage  of  an  act  by  King  AVilliam's  first  assembly  in  1692,  the 
governor  or  his  secretary  appear,  by  the  extant  records,  to  have  taken 
proof  of  wills  and  made  inventories  and  appraisements  of  estates, 
settled  accounts,  and  gi'anted  discharges,  in  the  first  instance,  though 
the  courts  of  sessions  and  the  Mayor's  Court  continued  to  exercise 
their  powers,  in  this  regard,  as  theretofore.  By  the  act  above  referred 
to,"  the  governor,  or  his  dele- 
gate, was  authorized  to  probate  •--"•' 
wills,  and  to  grant  administra- 
tion in  cases  of  intestacy,  under 
the  prerogative  seal.  In  cases 
arising  in  counties  other  than 
New  York,  Orange,  Richmond. 
Westchester,  and  Kings  (wills 
in  which  were  to  be  proved  in 
New^  York  City),  the  proceed- 
ings and  proof  might  be  taker 
in  the  county  Courts  of  Com- 
mon Pleas,  and  certified  to  the  secretary's  office  in  New  York,  where 
the  probate  and  letters  testamentary  or  of  administration,  as  the  case 
might  be,  were  issued.  Where,  however,  the  estate  was  under  £50,  the 
Common  Pleas  might  grant  probate  and  issue  letters,  subject  to  an 
appeal  to  the  governor  by  an  aggrieved  party.  In  fact,  the  governor 
exercised  the  powers  of  the  ordinary  or  bishop  in  the  ecclesastical 
courts  of  England,  and  the  provincial  secretary  that  of  registrar. 

The  requirement  of  the  act,  that  wills  in  the  counties  of  Orange, 
Richmond,  Westchester,  and  Kings,  should  be  proved  in  New  York, 
was  found  to  be  so  onerous,  after  some  years,  that  the  governor  com- 
missioned delegates  to  act  for  him  in  all  these  counties.  In  New  York 
county,  the  deputy-secretary  w\as  usually  named  by  the  governor  as 
his  delegate.  Doctor  Bridges,  afterward  appointed  chief -justice,  was  so 
named  by  Cornbury  in  1792,  and  it  was  he  who  first  introduced  the 
title  of  surrogate,  by  adding  it  to  his  signature  of  official  documents. 
After  1746,  or  thereabouts,  the  local  delegates  in  the  several  counties, 
other  than   New  York,  began   to  be  called,  surrogates,  and  were  so 


OLD  COURT-HOUSB,  POUgHKEEPSIB. 


N'.  Y.  Col,  Does.,  iii.  372,  tt  t 


I  Smith  and  Livinsston's  Laws,  15 


80  HISTOllY    OF   THE   BE>X1I    AXD   BAR   OF    NEW   YORK 

named  in  tlieir  commissions.  The  business  thus  done  in  the  name  of 
the  governor,  but  in  fact  by  his  delegate  or  surrogate,  came  to  be 
known  as  that  of  the  prerogative  office  or  Prerogative  Court,  which 
had  its  own  seal.  The  delegate  was  a  specially  commissioned  officer, 
and  he  was  authorized  in  making  decrees  in  matters  of  probate  and 
administration  to  "  affix  the  prerogative  seal  of  the  province,  without 
any  further  fiat  or  allowance."  ' 

The  Court  or  Oyer  and  Terminer. 

Dongan's  abortive  legislation  of  1683  had  provided  a  Court  of 
Oyer  and  Terminer  composed  of  one  Judge,  assisted  by  four  justices  of 
the  peace  of  the  county,  all  specially  commissioned  for  the  purpose. 
Under  the  judicial  organization  adopted  in  1691,  a  "  Court  of  Oyer  and 
Terminer  and  General  Gaol  Delivery  "  was  to  be  held  in  each  circuit, 
composed  of  one  of  the  Supreme  Court  Judges  assigned  to  tlie  circuit 
and  siDecially  commissioned  by  the  governor,  and  some  of  the  county 
judges  within  the  circuit.  In  the  city,  the  mayor  and  four  aldermen 
sat  with  the  circuit  judge.  The  ancient  name  of  Oyer  and  Terminer 
continued  to  designate  the  criminal  circuit  or  branch  of  the  Supreme 
Court,  until  the  new  judiciary  provisions  of  the  present  constitution 
went  into  effect  on  January  1,  1896.  When  on  a  circuit  the  sheriff  of 
tJie  county  met  the  judge  and  his  attendants  upon  his  entrance  into 
tlie  county  town  and  conducted  him  to  his  lodging,  which,  according 
to  the  etiquette  of  the  time,  was  not  to  be  the  same  as  that  occupied 
by  the  lawyers.  Toward  the  end  of  the  colonial  period  the  judges 
began  to  sit  in  gown  and  bands,  though  the  bar  never  donned  any  dis- 
tinctive habit. 

Prosecutions  by  information,  by  order  of  the  governor  and  coun- 
cil, instead  of  by  indictment  by  a  grand  Jury,  were  not  uncommon. 
Commitments  under  warrants  issued  by  the  council,  of  which  the 
judge  who  might  try  the  prisoner  was  perhaps  a  member,  gave  rise  to 
some  complaint  and  became  the  occasion  of  scandal.  Warrants  were 
even  issued,  as  in  Zenger's  case,  where  the  grand  jury  had  refused  to 
bring  in  an  indictment.  It  was  in  its  criminal  branch  that  the  Supreme 
Court  has  left  a  tarnished  record.  Leisler's  trial  in  April,  1091,  at  a 
special  Oyer  and  Terminer,  composed  of  Dudley,  Smith,  and  Philipse, 
who  were  immediately  after  the  trial  connnissioned  judges  of  the  new- 
ly erected  Supreme  Court,  is  mentioned  by  all  our  local  historians. 
The  hanging  of  Leisler  and  Milborne,  who  had  been  convicled  and  sen- 
tenced, though  refusing  to  plead  and  standing  dumb  through  the  trial, 
caused,  under  the  circumstances,  a  great  revulsion  of  public  feeling 
against  the  new  court  and  its  jiidges.  Whatever  we  may  think  of  the 
regularity  of  the  trial  and  the  Justness  of  the  verdict,  probably  no  pub- 

>  Any  further  account  of    the  prerogative  jurisdic-     Common  Pleas,  sitting;   as  surrogate,  had 
tion  in  the  province  would  be  altogether  superfluous  in     give  in  deciding  Matter  of  Brick,  15  Abb.  Pr, 
view  of  the  very  full  account  which  Judge  Daly  of  the 


IIISI'OUV    (I 


II     .\M>     ItAI 


i:k 


K1 


lie  cvcnl  in  our  coloiiiiil  history  cxcrlcd  m  (Icciht  or  more  ••ii<liiriii^'  iii- 
lliuMice  on  the  social  and  political  life  of  the  province  throii^'lioul  its 
subscqiKMit  liistory  than  this  "barbarous  niiudcr"  and  "  revrn^cful 
sacrilice,"  as  it  was  variously  characterized.  For  many  years  the  pub- 
lic men  of  New  York  were  known  as  l^KMslei-ians  oi-  anti-Ixnslerians. 
It  was  not  long  after  Leisler's  execution  that  his  sympathizers  had 
their  revenge  upon  his  prosecutors,  the  chief  of  whom  was  Nicholas 
Bayard.  At  the  time  of  Attwood's  appointment  as  chief-justice,  Leis- 
ler's  attainder  had  been  reversed  by  act  of  Parliament,  in  eifecting 
which  the  Earl  of  Belloniont,  before  he  came  out  as  governor,  had 
taken  an  active  pait.  On  his  arrival  here  in  1700  he,  as  well  as  Lieu- 
tenant-Governor Nanfan,  were  friendly  to  the  so-called  Leislerian  fac 
tion.  On  the  death  of  15ellomont,  Nanfan,  Thomas  Weaver,  the  col- 
lector of  the  port,  and  Chief- 
Justice  Attwood  were  in  full 
control.  They  caused  a  war- 
rant to  be  issued  by  the  council 
for  the  arrest  of  Nicholas  Bay- 
ard, Rip  A'an  Dam,  Philip 
French,  and  Thomas  Wenman 
on  a  charge  of  high  treason,  in 
that  they  (all  anti-Leislerians) 
had  signed  addresses  to  the 
king,  the  House  of  Commons, 
and  to  Lord  Cornbury,  news  of 
whose  appointment  as  gov- 
ernor had  reached  the  city, 
charging  their  opponents  then 
in  power  with  all  manner  of 
malfeasance  in  office,  with  the 
connivance  and  support  of 
Lieutenant-Governor  Nanfan. 
Alderman  Hutchins,  in  whose 

tavern  the  addresses  were  signed,  had  been  committed  by  Nanfan  for  re- 
fusing to  disclose  the  signers'  names.  Attorney-General  Broughton  had 
given  an  opinion  on  the  lieutenant-governor's  application,  to  the  effect 
that  there  was  nothing  criminal  in  the  addresses,  and  that  Hutchins' 
refusal  to  give  up  the  uames  was  not  a  criminal  contempt  justifying  his 
commitment.  But  the  grand  jury  having  been  induced  to  bring  in  an 
indictment,  Attorney-General  Broughton  was  suspended  (being  commis- 
sioned by  the  crown,  he  could  not  be  removed)  and  Weaver  was  appointed 
to  conduct  the  prosecution  before  a  specially  commissioned  Oyer  and 
Terminer,  composed  of  the  chief -justice,  Attwood,  and  De  Peyster  and 
Walters,  second  and  third  judges,  respectively.  De  Peyster  had  been 
one  of  Leisler's  captains,  and  the  resentment  of  both  of  the  puisne 
judges  toAvard  Bayard  for  his  activity  in  instigating  Leisler's  prosecu- 


LE:sLEK  S  HOUSE. 


82  HISTORY    OF   THE   BP:XCH   AND   BAR   OF   NEW    YORK 

tion  and  subsequent  execution  was  well  known.  Bayard  was  tried  and 
convicted  of  treason  under  an  act  of  1691,  of  which  he  himself  and  the 
anti-Leislerians  were  the  authors,  which  made  it  treason  for  a  person 
to  endeavor  by  force  of  arms  or  otherwise  to  disturb  the  peace,  good, 
and  quiet  of  the  king's  government ;  and  Bayard's  promotion  of  the 
addresses  to  the  House  of  Commons,  which  then  had  nothing  to  do 
with  the  government  of  New  York,  more  than  with  the  government  of 
France  or  Canada,  was  held  to  come  within  the  terms  of  this  act.  A 
full  and  presumably  fair  contemporary  report  of  the  trial,  with  the 
arguments  of  William  Nicoll  and  James  Emott,  both  able  and  fearless 
lawyers,  who  appeared  for  the  accused,  have  come  down  to  us.  A  gen- 
eral verdict  of  guilty  having  been  returned  by  the  jury,  and  a  motion 
in  arrest  of  judgment  having  been  denied,  the  horrible  sentence  of  the 
English  law  for  the  crime  of  treason  was  pronounced,  which,  as  those 
familiar  with  our  history  will  remember,  was  subsequently  annulled 
by  Queen  Anne.  This  celebrated  trial  is  noticeable  as  showing  that  at 
this  early  day,  and  a  century  and  more  before  the  privilege  was  ac- 
corded in  England,  a  prisoner,  on  a  trial  for  felony,  was  allowed  the 

assistance   of    counsel. 

It  ought  to  be  added 
//  y^yy    >         Mi^'  *^  ^'  \  I     ^^^^  ^^  *^®  court's  con- 

^^-~— _--^  ^  W'-m^^^^  ^^^  ^^*  such  a  scan- 
dalous departure  from 
the  models  then  furn- 
ished at  Westminster 
Hall  as  has  been  alleged.  No  sympathy  need  be  spent  on  Nicholas 
Bayard,  the  leader  of  a  blood-thirsty  faction,  who  was  only  rescued 
from  the  pit  he  himself  had  dug  by  the  timidity  or  charity  of  his  pros- 
ecutors. His  conviction  was  had,  no  doubt,  through  a  strained  con- 
struction of  the  letter  of  an  obsolete  law,  but  the  report  of  the  proceed- 
ings on  the  trial  does  not  disclose  on  the  part  of  the  court  any  such 
gross  violation  of  the  ordinary  rules  of  criminal  procedure  or  i^erversion 
of  criminal  justice,  as  then  understood,  as  to  call  for  the  severe  judg- 
ment which  some  of  our  historians  have  ventured  to  pronounce.' 

Another  and  more  widely  known  trial  in  the  criminal  branch  of  the 
Supreme  Court  was  that  of  Zenger,  the  printer  of  the  New  York  Week- 
ly Journal^  for  seditious  libel  in  1735.  The  preliminary  proceedings, 
in  which  Alexander  and  Smith,  the  prisoner's  counsel,  were  summarily 
disbarred  for  calling  in  question  the  validity  of  the  judge's  commissions, 
have  already  been  mentioned.  The  trial  itself  is  worthy  of  notice  here 
because  its  influence  on  the  constitutional  development  of  the  province 
was  marked  and  permanent.  That  the  argunieut  of  Zenger's  counsel  in 
favor  of  a  jury's  right  to  find  a  general  verdict  in  libel  cases  was  known 

'  Ex-Chief-Ju8tice  Charles  P.  Daly's  articles  in  the  might  be  expected,  an  interesting  account  of  Attwood's 
(ireen  Bag  for  March,  April,  and  May,  1895,  furnish,  as     career  and  of  Bayard's  trial. 


IIISTOI.-V    <)|-    llIK    I(|:N(II    a\i>    I!\i:   oi-    m;\v    voi;k  H.i 

in  lviii'I:iinl  ;iM(I  was  ;i\:iil('i|  of  in  ihc  (Icrciicc  of  I  lie  uMi'at  iiiiiiilxT  of 
l)ers()n.s  who,  diiiiiii;-  the  lu^xt,  lilty  odd  years,  cspcciiUly  diiriii^^  tin- 
early  years  ol"  (Teor^-e  I II.,  were  tried  in  the  Kin<j;'s  iieiieh  for  s(!ditioiis 
libel,  cannot  well  he  doubted.'  The  most  reniai-Uable  of  these  En^dish 
cases  was  the  iidonnation  a<fainst  John  Ifoi-ne  TooUe  in  1777  for  a  sedi- 
tious libel  in  en(HMira]u:inj;  the  American  revolt ;  that  a<^ainst  Dean 
Shipley,  a  brother-indaw  of  Sir  William  Jones,  in  1783,  for  causing  to 
be  reprinted,  and  recommendin<j:,  the  hitter's  tract  iii  favoi-  of  I'ailia- 
nieutary  reform  ;  and  that  ai^ainst  'Piiomas  Paine  in  17!)2  for  libellin;.^ 
the  klnf?  in  "The  Rights  of  Man."  On  these  trials  Lord  P^rskine, tlum 
at  the  bar,  made  those  matchless  appeals  in  behalf  of  the  right  of  a 
jury  in  a  libel  case  to  give  a  general  verdict  of  guilty  or  not  guilty, 
which  led  to  the  i)assage  of  Fox's  Libel  Act  in  1792,  by  which  such  ver- 
dicts were  allowed  and  judges  w^ere  forbidden  to  direct  a  verdict  of 
guilty  on  proof  of  publication  and  of  the  sense  ascribed  to  it  by  the 
prosecution.'  This  right  of  juries  in  libel  cases,  thus  secured  by  stat- 
ute in  England,  had  been  claimed  as  a  common-law  right  in  New  York 
over  fifty  years  before  in  Zenger's  case,  and  the  verdict  there  of  not 
guilty  had  established  the  law  of  New  York  in  favor  of  freedom  of  the 
press  for  all  time. 

After  the  exceptions  to  the  information  had  been  oveiTuled,  and 
Zenger  had  been  deprived  of  the  assistance  of  his  counsel  (Alexander 
and  Smith),  John  Chambers,  a  former  puisne  judge  of  the  court,  was 
assigned  in  their  place,  and  on  a  plea  of  not  guilty,  a  struck  jury  was 
obtained.  The  leading  counsel  for  the  accused,  on  the  trial,  was 
Andrew  Hamilton,  of  Philadelphia.  His  line  of  defence  was,  after 
admitting  the  jiublication,  that  the  matters  charged  as  false,  scandal- 
ous, etc.,  were  true  in  fact,  and,  therefore,  no  libel.  Hamilton's  address 
to  the  jury  was  a  really  eloquent,  forcible,  and  courageous  effort,  and 
would  do  credit  to  any  bar  in  anj^  period  of  American  or  English  his- 
tory. Chambers  was,  if  less  eloquent,  equally  effective  with  the  jury, 
denouncing  the  authorities  cited  b}'  Bradley,  the  attorney-general,  as 
those  of  the  terrible  Star  Chamber,  and  claiming  that,  under  English 
law,  it  was  no  libel  for  men  suffering  under  a  bad  administration  of 
government  to  make  public  their  just  complaints.  He  denounced  gov- 
ernment by  prerogative  in  the  colonies,  and  claimed  for  the  freeholder 
of  New  York  the  rights  enjoyed  by  the  freeholders  of  England.  The 
jury,  though  all  attempts  to  prove  the  truth  of  the  publications  had 
been  overruled,  and  notwithstanding  De  Lancey's  strong  charge  that 
the  truth  of  the  libel  was  outside  their  province  to  determine,  and 
that  they  were  judges  of  the  fact  only  and  not  the  law,  returned  a 
verdict,  almost  at  once,  of  not  guilty,  which  instantly  threw  the 

'  Zenger'e   cage   was   published    in   Howeirs    State  1702  that  Lord  Campbeirg  Libel  Act  of  1845  permitted 

Trials,  xvii.  675.     A  report  of  the  trial  was  published  the  truth  to  be  given  in  evidence,  and  thus  forever  ex- 

in  Boston  which  is  thought  to  have  been  prepared  by  tirpated  the  maxim,  "the  greater  the  truth  the  greater 

one  or  more  of  Zenger's  counsel.  tlie  libel."    32  George  111.  c.  60. 

*  But  it  was  not  until  fifty  years  after  the  libel  act  of 


84  HISTORY   OF   THE   BENCH   AND   BAR   OF   NEW    YORK 

crowded  court-room  into  an  uproar  of  noisy  applause,  to  the  conster- 
nation and  indignation  of  the  judges,  De  Lancey  and  Philipse.  After 
lying  in  jail  for  eight  months,  Zenger  was  released  and  resumed  the 
publication  of  his  paper.  For  his  "  learned  and  generous  defence  of 
the  rights  of  mankind  and  the  liberty  of  the  press,"  the  common  coun- 
cil next  day  presented  Hamilton  with  the  freedom  of  the  city  in  a  gold 
box,  with  their  thanks,  and  a  grand  ball  was  given  in  his  honor  on  the 


JOURNAL 

O  F     T  H  E 

PROCEEDINGS 

I    N 

The  Detection  of  the  Confpiracy 

FORMED     Br 

Some  fV/i/te^  People     in  Conjundion  with  N'egro  and  other  S/aves, 

TOR 

Burning  the  City  of  NEIV-YORK  in  AxfERicA, 

And  Murdering  the  Inhabitants. 

Which  Confpiracy  was  partly  put  in  Execution,  by  Burning  HLs  Majefty's  Houfe  in 
fort  G  EOR.cE,  witKin  the  faid  Cny^  on  Wednerday  the  Eighteenth  of  Murth,  1741  and 
fetting  Fire  to  feveral  DwcUing  and  otKerHoufes  there,  within  a  few  Days  fucceeding. 
And  by  another  Attempt  made  in  Profecution  of  the  fame  infernal  .Scheme,  by  putting 
Fire  between  two  other  Dwelling- Houfes  within  the  faid  City,  on  tlie  Fifteenth  Day  of 
February  J    ij^2  ;  which  was  accidentally  and  timely  difcovered  and  extuiguiQied. 

CONTAINING, 

A  Narrative  of  the  Trials,  Condemnations,  Executions,  and  Behaviour  of  the 
feveral  Crimuials,  at  the  Gallovv^s  and  Stake,  with  their  ^/^^-e^A^-j  and  Cvnfeffiotu  ;  with 
Notes,  Obfervations  and  Reflexions  occafionally  interfperfed  throughout  the  Whole 
An  Appendix,  wherein  is  fet  forth  fome  additional  Evidence  concerning  the  faid 
Confpiracy  and  Confpirators,  which  has  come  to  Eight  fmce  their  Trials  and 
Executions. 
J.  Lists  of  tlie  feveral  Perfons  (Whites  and  Blacks)  committed  on  Account  of  tlie 
Confpiracy  •,  and  of  the  feveral  Criminals  executed,  and  of  thofe  tranfported  with 
the  Places  whereto. 

By  the  Recorder  of  the  City   of  New  York. 

Sluiifac  lent  Domini,    audent  cuvi  talia.Ywrt^'i,     Vire    Ed. 

N  E  W- Y  O  R  K 

Printed    by    "^ames  Parker     at  the   New   Pri ntmg- Office _     1744 


IIISIOKY    OK    rilK    lti:.\(ll    AM)    liAi:    dl'    .m;\\-    Vn|;K  H.") 

S!irii<»  t'V(>nin^;  imd  iirxl  d.iy,  on  his  \v;iy  lo  (lie  l»:iii;c  wliidi  was  lo 
cany  him  to  l*liihi(h'li)hia,  lie  was  escorted  with  ^i-cat  ostentation, 
and,  on  sailin<,^  received  a  i)artin<^  salute  of  cannon  and  ninltitiidinoiis 
huzzas.' 

There  are  few  incidents  in  onr  judicial  annals  which  t  lie  annalist 
more  re<]frets  to  recoid  than  the  conduct  of  the  tiial  of  tiie  alleged  con- 
spirators enii:ai;ed  in  the  so-called  negro  ])lot  in  1741,  Chief-.Iiistice 
Ilorsnianden  presiding.  Tiie  exculi)atory  volume  ])ul)lished  by  him,  in 
1744,  concerning  what  he  calls  "  theCcmspiracy  Formed  by  Some  White 
People,  in  Conjunction  with  Negro  and  other  Slaves,  foi-  limning  tlie 
City  of  New  York,  and  Murdering  the  Inhabitants,"  failed  to  convince 
his  own,  much  less  any  succeeding,  generation  of  anything  other  than 
a  plot  of  iietty  thieves  to  create  by  incendiary  fires  a  state  of  i)ublic 
alarm  to  facilitate  pillage.  The  ready  acceptance  by  the  public  of  the 
theory  that  an  alleged  Catholic  priest,  at  the  instigation  of  the  King 
of  Spain,  with  whom  England  was  then  at  war,  was  at  the  bottom  of 
the  i^lot,  was  a  disgraceful  sui'render  to  the  bigotry  of  a  past  century. 
The  senseless  panic,  amounting  to  madness,  into  which  the  i)eople, 
from  the  highest  to  the  lowest,  were  thrown,  is  inexi)licable  when  the 
contemptible  origin  of  the  tragedy,  and  the  inconclusive  and  even 
absurd  testimony  of  an  ignorant,  half-witted,  or  else  wickedly  cunning 
girl  of  fifteen  years,  on  which  a  grand  jury  of  the  leading  citizens  of 
the  city  brought  in  an  indictment,  are  considered.  But  the  most  dis- 
graceful feature  of  the  craze  was  the  conduct  of  the  bar — then  com- 
posed of  such  men  of  talent  and  high  character  as  Joseph  Murray, 
James  Alexander,  William  Smith,  Jr.,  John  Chambers,  David  Jamison, 
and  Lodge,  who,  by  general  agreement,  refused  to  step  forward  in 
defence  of  any  one  of  the  trembling  slaves,  and  not  less  wretched 
whites,  over  one  hundred  and  fifty  all  told,  who  were  implicated,  and 
foredoomed.  The  trial  court  and  the  attorney-general  (Bradley)  were 
aided  by  the  whole  bar ;  and  judge  and  lawyers  were  applauded  and 
egged  on  by  the  most  enlightened  and  intiuential  citizens  of  the  town. 
In  the  course  of  three  months,  more  than  one  hundred  and  forty 
negroes — four  of  them  women — were  locked  np ;  over  one  hundred 
were  convicted  of  the  conspii-acy  as  charged,  twelve  of  whom  were 
burnt  alive  at  the  stake,  eighteen  hanged,  and  seventy-tw^o — some  of 
whom  were  probably  freemen — transported  to  be  sold  as  slaves  in  for- 
eign conntries.  Twenty  whites  were  committed,  of  whom  only  two  were 
executed.  Not  one  of  them  had  the  benefit  of  counsel,  and  whenever 
the  master  of  an  implicated  slave  ventnred  to  furnish  i)roof  by  way  of 
defence,  such  as  an  alibi,  good  character,  or  other  circumstance,  his 
testimony  was  wholly  disregarded.  "  For  its  disregard  of  all  rules  of 
legal  evidence,  for  its  prostitutions  of  the  forms  of  law,  for  the  perpe- 
tration of  cruelty,  for  popular  credulity  and  cowardice,  for  the  abnega- 

•  The  observation  of  Gouverneur  Morris,  made  long  afterward,  that  "  Zenger's  trial  in  1;3j  was  the  germ  of 
Anierican  freedom,"  has  been  often  qnoted. 


86 


HISTORY  OF  THE  BENCH  AND  BAR  OF  NEW  YORK 


tion  of  all  sense  of  mercy,  for  tlie  oppression  of  the  weakest  and  most 
defenceless,  tlie  whole  transaction  was  without  precedent,  and  has  no 
parallel  in  any  civilized  community.'"  Allowing,  however,  for  the 
terrors  of  an  anticipated  insurrection,  from  which  a  slave-holding 
community  must  always  suffer,  the  Negro-plot  trials  in  New  York 
cannot  be  said  to  have  exceeded,  if  they  equaled,  the  atrocity  which 
characterized  the  "  Popish-plot"  Judicial  murders  in  England  in  1679, 
which  Lord  Campbell  declares  to  be  ''  more  disgraceful  to  England 
than  the  massacre  of  St.  Bartholomew's  to  France,"  under  the  presid- 
ing genius  of  Chief-Justice  Scroggs,  of  loathsome  memory." 

Chief-Justice  Horsmanden  appears  in  better  guise  in  the  courage- 
ous stand  he  and  his  associate  judges  took  in  1764,  against  the  govern- 
ment, in  the  matter  of  appeals  in  civil  causes,  which  involved  the  grav- 


THE  GOVERNMENT  HOUSE. 


est  constitutional  question— to  wit,  whether  the  king,  in  requiring,  by 
his  instructions  to  the  governor,  the  allowance  of  an  appeal  to  the 
latter  and  his  council  from  civil  judgments  of  the  Supreme  Court,  was 
not  exceeding  the  constitutional  limits  of  his  power,  it  being  conceded 
that  such  an  interference  with  judicial  procedure  in  England  was 
beyond  his  power.  Why  not  equally  out  of  his  power  in  an  English 
colony  ?  Before  the  promulgation  of  this  new  instruction  of  George 
III.,  a  Supreme  Court  judgment,  in  a  civil  action,  could  be  reviewed 
by  the  governor  and  council  by  writ  of  error  only,  on  which  only  errors 
of  law  were  assignable,  the  evidence  not  appearing  on  the  record ; 
whereas  an  appeal,  as  was  now  directed  to  be  allowed,  would  bring  up 
the  whole  record,  including  the  evidence  on  which  the  verdict  was 
found— having  the  effect,  it  was  claimed,  of  enabling  a  defeated  party, 
if  rich  or  powerful  enough  to  appeal,  to  defeat  the  verdict  of  a  jury. 
In  the  case  of  Force  vs.  Cunningham,  a  verdict  having  gone  against 


'  Bryant  and  Gay's  "  Popluar  History  of  the  United 
States,"  iii.,  234.  For  many  interesting  details  of  the 
trial,  not  possible  to  be  given  here,  the  reader  may  be 


referred  to  Mr.  Gay's  account,  the  best  the  writer  knows 
of.    See  also  Valentine's  Maiuial  for  1870,  p.  T64. 
5  Campbell's  "  Lives  of  the  Chief -Justices,"  ii.,  259. 


IIISIOUV    OF     I  UK    ItKNCII     AM)    liAIt    <»l      M  \V     \>H:K  S? 

(Icr.'iuiiinl,  ;it  thr  r:ill  term  of  ITCI,  llic  letter,  1)\  liis  ;ill(.nicy-iri-f:ic( 
lit'  Ix'iii"::  a  noii-icsidcnt- -  i)Olili()ii('(l  the  <i<)V('ni()r  and  coimcil  fdi-  iici-- 
iiiission  (()  appeal,  which  the  "governor,  Coldcii,  ^lanled,  iiotwithstaiid- 
in<;  sti'oiii"-  ()i)p()siti()ii  on  \hv  part  of  llorsniaiidcn  and  other  nieinhers 
of  the  council,  lie  called  on  tlie  attorney general,  .lohn  Tabor  Keinpe, 
to  assist  in  draftin<>;  tlu^  wiif,  as  none  of  the  appellant's  attorneys  or 
counsel,  and  indeed  no  lawyer  in  the  town,  would  ai)])ear  for  the  ai)pel- 
lant,  or  would  advise  the  govei'uor.  But  the  governor,  thou<'li  not  a 
lawyer,  as  he  said,  with  the  ]uA\)  of  the  appellant's  representative, 
drafted  "a  writ  of  Inliibition,"  addresscnl  to  all  the  ofRcers  of  the 
Supreme  Court,  stayin<;  all  proceedin<i,s  on  the  jud<,nnent,  and  a  day  or 
two  afterward  sealed  another  writ,  which  directed  the  chief  justice  to 
bring  up  the  proceedings  to  the  governor  and  council.  A  great  outcry, 
or  "popular  clamour,"  as  Golden  calls  it,  immediately  arose,  but,  to  the 
satisfaction  of  "  the  republican  faction,"  the  chief-justice — Smith  and 
Livingston.  ,J.,).,  sitting  with  him — flatly  refused  to  obey  the  writ,  or 
to  recognize  the  stay  of  proceedings,  and  this  in  such  an  offensive 
manner  as  to  furnish  the  lieutenant-governor  another  opportunity  to 
inveigh  against  the  lawyers  and  judges,  who,  he  said,  appeared  resolved 
to  make  the  court  the  ultimate  resort  of  justice,  and  thus  increase  their 
already  enormous  influence  in  the  province.  Of  the  few  people  in  the 
province,  "  almost  universally  ignorant,"  who  had  a  liberal  education, 
most  of  them,  he  said,  were  lawyers,  whose  opposition  to  the  scheme 
of  appeals— based  as  it  was  on  the  absurd  idea  that  as  the  king  could 
not  establish  courts  or  regulate  their  procedure  in  England,  he 
could  not  do  so  here — would,  if  it  should  prevail,  be  ''  subversive  of 
every  government  in  the  colonies,  where  all  of  them  depend  upon  the 
king's  charter,  or  on  his  commission  to  his  governor,"  not  only  for 
their  executive,  but  their  judicial  powers.  He  complains  that  the 
judges,  instead  of  "  giving  the  reasons  of  their  judgments  in  private 
and  simply,  as  I  had  expected,  surprised  me  by  harranguing  to  a  large 
audience  to  make  his  Magesty's  Instructions  appear  illegal  and  arbi- 
trary, and  to  render  his  Governor  odious  in  the  eyes  of  the  people." 
He  says  he  at  first  thought  the  chief -justice  had  gone  further  than 
either  of  the  other  judges  was  willing  to  follow  him ;  "  but  to  what 
length  Justice  Livingston  has  gone  will  best  appear  from  his  harrangue 
which  he  industriously  intruded  on  the  last  day  of  the  hearing  with- 
out being  desired  to  speak  on  this  occasion."  ' 

The  governor's  rei)ort  to  the  privy  council  of  the  judges'  contu- 
macious conduct  brought  back  the  peremptory  order  of  the  king  in 
council,  commanding  them  to  send  up  the  proceedings,  but  they  refused 
to  comply  with  another  writ  which  the  governor  sealed."    Thus  ended 

•  N.  Y.  Col.  Docs.,  vii.,  G76,  681,695.    These  "bar-  that  our  Constitution  is  to  be  altered  by  the  King's  32nd. 

rangues  "  were  printed  and  eagerly  read.    "  The  grand  instruction  and  trial  by  Juries  taken  away."   Ibid.  6;W. 

Engine,"  the  governor  wrote,  "  by  which  tlie  Judges  '  Letter  of  Judge  Livingston  to  his  father ;  Uuut's 

and  Lawyers  endeavor  to  inflame  the  minds  of  the  "  Life  of  Edward  Livi 
people,  easily  misled  "by  sounds,  is  by  boldly  suggesting 


88  HISTORY    OF   THE   BEXCII   AND    BAK   OF   NEW   YORK 

the  first  and   last  appeal   under  George   the  Third's   32d  "  Instruc- 
tion/' 

The  last  circuit  of  the  Supreme  Court  was  held  by  Judge  Thomas 
Jones  at  White  Plains  in  April,  1776.  He  tells  us  in  his  History  that 
one  of  the  reasons  for  his  being  subsequently  attainted  was  that,  at 
this  ciruit,  he  discharged  from  custody  several  persons  arrested  as  loy- 
alists by  the  Westchester  county  committee.  The  last  court  for  Tryon 
county  had  been  held  at  Johnstown  in  the  month  of  October,  1775. 

Closing  of  Civil  Courts  by  General  Howe. 

Unlike  General  Washington,  who,  during  his  occupation  of  the 
city,  interfered  in  no  way  with  the  local  magistrates  in  the  exercise  of 
their  functions,  the  British  general  on  his  entry  in  September,  ]776, 
shut  up  the  civil  courts,  and  everywhere  within  the  British  lines — that 
is,  on  Long  Island,  Staten  Island,  Manhattan  Island,  and  in  a  good  part 
of  Westchester — the  inhabitants,  as  well  the  loyal  as  the  disloyal,  were 
given  over  to  a  plundering  soldiery.  For  want  of  civil  magistrates,  or 
by  the  indifference  or  connivance  of  military  commanders,  the  thieves 
went  unpunished  and  the  stolen  property  was  irrecoverable.'  In  such  a 
state  of  distress  upward  of  a  thousand  reputable  persons  within  the  Brit- 
ish lines  signed  a  petition  addressed  to  Lord  Howe  (October  16, 1776), 
praying  that  he  would  "  Restore  this  City  &  County  to  his  Magesty's 
Protection  and  Peace  " — in  other  words,  would  re-establish  civil  power 
in  the  place  of  military  rule.  Among  the  signers  were  Chief-Justice 
Horsmanden,  Justices  Ludlow  and  Hicks — Judge  Jones  being  then 
upon  his  parol  at  Fort  Neck, — and  such  leading  lawyers  as  Samuel 
Jones,  John  Tabor  Kempe,  and  Benjamin  Kissam,  all  of  the  episcopal 
and  some  of  the  other  clergy,  and  several  merchants  of  high  standing. 
The  chief -justice  wrote  a  jDersonal  letter  to  Governor  Tryon  asking  him 
to  XJresent  the  petition.  No  answer  to  the  petition  was  ever  received 
from  General  Howe.  In  parts  of  the  province  outside  the  British  lines 
no  attemj)t  was  made  either  by  the  i)rovincial  congress  or  by  the  state 
convention  to  remedy  the  inconvenience  occasioned  by  a  lack  of  courts 
of  justice.  As  the  authority  of  the  royal  government  declined,  disorders, 
of  course,  increased.  Those  of  the  local  judges  and  other  civil  officers 
who  were  loyalists  were  odious  to  the  great  body  of  the  people,  who 
regarded  with  contempt  or  open  defiance  their  attempts  to  execute  the 
duties  of  their  office.  Those  known  to  be  in  sympathy  with  the  popu- 
lar movement  were  generally  recognized  and  obeyed.  The  old  forms 
of  process  for  the  recovery  of  debts  and  the  punishment  of  crimes  were 
continued.     Some  of  the  counties  endeavored  to  remedy  the  inconven- 

1  Judge  Jones  says  he  saw  the  books  which  Joseph  Ist  liintitute,  or  what  is  usually  called  Coke  upon  Little- 
Murray,  the  lawyer,  had  bequeathed  to  King's  College,  ton,  was  offered  to  me  for  Is.  Od.  I  saw  in  a  public 
"publicly  hawked 'about  the  town  for  sale  by  private  house  on  Long  Island  nearly  forty  books,  bound  and  let- 
soldiers,  their  trulls  and  doxeys."  "  I  saw,"  he  adds,  tered,  in  which  were  affixed  the  aroisof  Josepli  Murray, 
"an  Annual  Register,  neatly  bound  and  lettered,  sold  Ksq.,  under  pawn  for  from  one  dram  to  three  drams 
for  a  dram.  Freeman's  Ueports  for  a  shilling,  and  Coke's  each." 


U"     I'lIK    I!i:.N('ll     AM>    ItAi:    OK 


iciK'c  by  l()<':il  :iii(l  Icin- 
porary  re^ulalions,  bill 
these  were  not  a])i)r()V('il 
by  tlie  ])n)visi()nal  ^ov- 
(M'nmeiit.' 

It  was  not  until  1780, 
on  tlie  arrival  of  General 
KobiM'tson,  Avlio  dis- 
placed Tryon  aseivil  gov- 
ernor, tliat "  (yonrts  of  Po- 
lice" were  esta  bl  islied  and 
a  pretense  made  of  re-es- 
tablishin*;  the  Supreme 
Court.  The  chief-justice 
and  Justice  Hicks  were 
dead,  leaving-  Ludlow 
and  Jones.  To  the  cha- 
grin and  indignation  of 
these  two  surviving 
judges,  whose  loyalty  to 
the  crown  was  unques- 
tionable, a  mere  jiracti- 
tioner  at  the  bar,  and  one 
whose  loyalty  was  sub- 
ject to  suspicion  at  least, 
formerly  an  ardent  and 
even  violent  young  whig 
and  presbyterian  parti- 
san, was  preferred  to 
them  at  a  salary  of  £500 
sterling.  This  Avas  Wil- 
liam Smith,  the  younger, 
better  known  to  us  as  the 
historian  of  the  province. 
He  was  appointed,  says 
Judge  Jones  (truly 
enough),  "  at  a  time  when 
no  law  but  Military  and 
Police  law  existed,  when 
not  a  Court  of  Justice 
under  the  jurisdiction  of 
Britain  was  open,  and 
when  there  Avas  no  more 
occasion  for  a  chief-jus- 
tice than  there  was  for 
a    Bishop    or   a  Pope." 


I  Sparks'  "  Life  of  Gonvcriu-iir  Morris.' 


90         HISTORY  OF  THE  BENCH  AND  BAR  OF  NEW  YORK 

Appointed  after  the  Declaration  of  Independence,  lie  has  never  been 
recognized  as  a  member  of  the  provincial  Sni3reme  Court,  though  but 
for  his  final  and  hesitant  defection  from  the  friends  of  his  youth  in  his 
country's  struggle  for  independence,  his  name  must  be  numbered 
among  those  of  his  contemporaries  who  adorn  the  annals  of  New  York. 

The  Later  Colonial  Bar. 

Ths  generation  of  ISTew  York  lawyers  on  the  stage  for  the  quarter 
of  a  century  or  more  before  the  Declaration  of  Independence  was  com- 
posed of  men  who,  whether  for  their  learning  in  tlie  law,  their  skill  in 
forensic  contests,  or  their  liberal  views  and  enlightened  patriotism  in 
matters  of  public  concern,  were  the  equals  of  any  colonial  bar,  and  wor- 
thy to  be  associated  in  history  with  their  better  known  immediate  suc- 
cessors, John  Jay,  James  Duane,  Gouverneur  Morris,  Robert  R.  Liv- 
ingston, Jr.,  Egbert  Benson,  Peter  Yan  Schaack,  and  others  less  well 
known.  As  a  body  they  obtained  a  very  remarkable  influence  in  shap- 
ing popular  opinion  in  opposition  to  the  increasing  arbitrary  action  of 
the  British  king  and  i^arliament.  Writing  to  the  Eavl  of  Halifax, 
February  22, 1765,  Lieutenant-Governor  Golden  deprecated  the  growing 
influence  of  the  lawyers : 

The  dang-erous  influence  (he  said)  which  the  Profession  of  the  law  has  obtained 
in  this  Province,  more  than  in  any  other  part  of  his  Majesty's  Dominions,  is  a  prin- 
cipal cause  of  disputing  appeals  to  the  King,  but  as  that  influence  likewise  extends 
to  every  part  of  the  Administration,  I  humbly  conceive  that  it  is  become  a  matter  of 
State  which  may  deserve  Your  Lordship's  particular  attention.  After  Mr.  De  Lan- 
cey  had,  by  cajoling  Mr.  Clinton,  received  the  Conmiissiou  of  Cliief-Justice  dureing 
good  behaviour,  the  Profession  of  the  Law  entered  into  an  Association  the  efi'ects  of 
which  I  believe  Your  Lordship  had  formerly  opportunity  of  observing  some  striking 
instances.  They  proposed  nothing  less  to  themselves  than  to  obtain  the  direction  of 
all  measures  of  Government,  bj'  making  themselves  absolutely  necessary  to  every 
Governor  in  assisting  him  while  he  complied  with  their  measures  &  by  distressing 
him  when  he  did  otherwise.  For  this  purpose  every  method  was  taken  to  agrandise 
the  power  of  the  Assembly,  where  the  profession  of  the  law  must  allwise  have  great 
influence  over  the  members,  &  to  lessen  the  Authority  &  influence  of  the  Gover- 
nor. In  a  country  like  this,  where  few  men,  except  in  the  profession  of  the  Law, 
have  any  kind  of  literature,  where  the  most  opulent  families,  in  our  own  memory, 
have  arisen  from  the  lowest  ranks  of  the  people,  such  an  association  must  have 
more  influence  than  can  be  easily  imagined.  By  means  of  their  profession  they 
became  generally  acquainted  with  men's  private  affairs  &  necessities,  every  man 
who  knows  their  influence  in  the  Courts  of  Justice  is  desirous  of  their  favor  &  af- 
frayed  of  their  resentment.  Their  power  is  greatly  strengthened  by  inlarging  the 
powers  of  the  popular  side  of  government  &  by  depreciating  the  powers  of  the 
Crown.  The  Proprietors  of  the  great  tracts  of  Land  in  this  Province  have  united 
strongly  with  the  lawyers,  as  the  surest  support  of  their  enormous  &  iniquitous 
claims  &  thereby  this  faction  has  become  the  more  formidable  and  dangerous  to 
good  Government.  Mr.  Prat,  who  had  no  family  or  private  connections  in  this 
Province,  while  he  was  Chief  Justice,  discovered  the  dangerous  influence  of  this 
faction  in  the  Administration  of  Justice,  as  well  as  otherwise,  and  resolved  witli  the 


lll^lOliV 


iti;.\(H   AM>  itAU  or   m:\\    ^  i 


KK 


!H 


a.ssista.ico  of  (iovci'iuiiciit  lo  li«vc  cnislicd  il  ;  l)iit  lie  was  prcv.'iil.-«l  l)v<lralli.  Mjiny 
wlio  havo  <'illi<M-  tell  or  pci-ccivcd  llic  Nad  fMccts  of  lln- doininatioii  of  lawyers  la- 
iiuMit  tilt' loss  of  such  a  Judtr*'.  All  Associations  arc  daiitjcroiis  to  ^ood  ( Jovcniiiiciil, 
inoit>  so  ill  distant  dominions,  <fc  Associations  of  lawyers  llic  most  dantfcrous  of  any 
next  to  the  Military.  Were  tho  people  freed  fr-om  the  din-ad  of  this  Dominion  of  the 
Lawyers  I  (latter  myself  with  <riveimi  {fcneral  joy  to  tiie  People  of  this  I'rovince.  I 
never  received  the  least  opposition  in  my  administration  except  wh«>n  I  oppose  the 
views  of  this  Faction.  I  am  confident  their  views  intirely  defeated  l)y  the  means  I 
humbly  proposed  in  my  praecedin};:  letter,  with  the  concurrent  assistance  of  his  Maj- 
esty's Ministei-s  when  it  becomes  necessary.' 

Tlie  influence  of  tlie  legal  pfofession  in  slia])in<;  ])ubli('  opinion  in 
the  colonies,  in  hostility  to  the  stamp  act  and  other  legislation  of  pai"- 
lianient  intended  to  impose  obligations  of  British  citizenship,  without 
bestowing  corresponding  rights,   was  fully   recognized   in   England. 


LEAVIVG    NEW   YORK. 


Edmund  Bnrke,  who  was  well  acquainted  with  New  York  affairs,  hav- 
ing been  the  London  agent  of  the  province  from  December,  1770,  nntil 
the  dissolution  of  the  assembly  in  April,  1775,°  declared  that  very  early 
in  the  history  of  the  American  colonies  tlieir  respect  for  law  was 
remarkable.  "  In  no  country  perhaps  in  the  world,"  he  said,  "  is  the 
hiw  so  general  a  study.  The  profession  itself  is  numerous  and  pow- 
erful ;  and  in  most  provinces  it  takes  the  lead.  The  greater  number 
of  the  deputies  sent  to  congress  w^ere  lawyers.  But  all  who  read — 
and  most  do  read — endeavor  to  obtain  some  smattering  of  that  science. 
I  have  been  told  by  an  eminent  bookseller  that  in  no  branch  of  his 
business,  after  tracts  of  popular  devotion,  Avere  so  many  books  as  those 
on  the  law  exported  to  the  plantations.  The  colonists  have  now  fallen 
into  the  way  of  printing  them  for  their  own  use.   I  hear  that  they  have 


>  N.  T.  Col.  Docs.,  vii.,  705. 

'  IIi8  correspondence  with  the  assembly  has  never 
teen  published,  and  no  part  of  it  is  known  to  exist  in 
the  United  States,  except  a  MS.  copy  of  a  letter  con- 


cerning the  Quebec  Bill,  which  the  New  York  Historical 
Society  hiis.  No  one  knows  what  has  become  of  the 
pa4)er8  of  the  colonial  assembly. 


\f:i  HISTOKY    OF   THE   BENCH   AND   BAR   OF   NEW   YOKK 

sold  nearly  as  manj^  of  Blackstone's  Commentaries  in  America  as  in 
England."  ' 

Sir  William  Blackstone's  celebrated  Commentaries — "too  cele- 
brated," according  to  John  Austin — were  published  in  London  in  1765-8 
in  four  volumes.  The  first  American  edition,  in  four  folio  volumes,  was 
published  in  Philadelphia  by  Robert  Bell  in  1771-3  ;  and,  in  1774,  a  sec- 
ond edition,  in  four  volumes  quarto,  was  advertised  as  in  press.  But  it 
was  not  the  milk-and-water  of  Blackstone,  but  the  strong  meat  of 
Coke,  that  nourished  the  early  American  lawyer.  Writing  more  than 
half  a  century  after  Blackstone's  appearance,  Thomas  Jefferson  mourns 
over  his  reminiscences  of  the  time  before  Blackstone.  In  a  letter  to 
President  Madison,  February  17,  1826,  alluding  to  Coke's  First  and 
Second  Institutes  as  being  the  text-books  of  American  law-learning, 
when  he  himself  was  a  student  of  them — and  Blackstone,  too,  a 
novice—"  a  man,"  he  writes,  "  of  profounder  learning  in  the  orthodox 
doctrines  of  the  British  Constitution,  or  in  what  were  once  called 
English  Liberties,  never  wrote.  But  when  his  black  letter  text  and 
uncouth  cunning  learning  got  out  of  fashion,  and  the  honeyed  Mans- 
fieldian  of  Blackstone  became  the  student's  hornbook,  from  that 
moment,  that  profession  began  to  slide  into  torpor  ;  and  nearly  all  the 
young  brood  of  lawyers  are  now  of  that  line."  ' 

To  that  former  generation  of  strong  men,  of  whom  Jefferson 
speaks,  belonged  such  lawyers,  in  New  York,  as  William  Nicoll, 
James  Emott,  already  mentioned,  Joseph  Murray,  James  Alexander, 
the  two  William  Smiths — father  and  son, — William  Livingston,  John 
Morin  Scott,  John  Chambers,  Samuel  Jones,  Richard  A'arick,  Richard 
Morris,  and  Benjamin  Kissam.  Their  pupils,  forming  the  junior  bar 
when  the  outbreak  of  the  .Revolution  was  close  at  hand,  were  John 
Jay,  Robert  R.  Livingston,  Jr.,  Peter  R.  Livingston,  Gouverneur 
Morris,  Egbert  Benson,  Peter  Van  Schaack,  and  George  Clinton. 

Of  the  judges  in  office  at  the  Declaration  of  Independence — Hors- 
manden,   Thomas   Jones,   Ludlow,   and   Hicks— all   maintained   their 

»  Burke's  Wnrkg,  i.  188.  tory  of  the  Pleag  of  the  Crown,"  published  posthu- 

»"  Letters  aud  Correspondence,"  iv.,436;  Tucker's  mously,  in  two  volumes,  in  173(;-9,  and  Boliun's  " //is/i- 

"Life,"  ii.  547.   Before  that,  in  a  letter  to  Judge  Tyler,  of  (utio  Legalis"  were  regarded  as  indis])en6able,  to  eay 

June  17, 1812  ("Letters  &  Cor."  iv.,183;  Tucker's  "Life,"  nothmg  of  Jacob's  "  Law  Dictionary  "  (17^9),  his  "  Law 

ii.,  361),  he  said  he  had  been  laboring  to  "  uncanonize  "  Grammar  "  (1749),  and  his  "  Practicing  Attorney's  Com- 

Blackstone  in  America  and  restore  the  worship  of  Coke —  panion."  Of  course,  "Coke  on  Littleton  "was  the  great 

but  all  in  vain.    It  may  be  worth  while  to  notice  the  standard  text-book.     Robert  Bell's  publishers'-list  of 

text-books  placed  inlaw  students' hands  before  Black-  reprints  advertised  in  1774  probably  cod  tains  the  te.\t- 

stone  gave  them  a  quietus.    Sir  Henry  Finch's  "  Of  books  thought  to  be  essential  to  every  lawyer's  working 

Law,  or  a  Discourse  thereof,"  was  the  law-student's  first  library  at  that  time.    They  were  :   (1)  "Coke's  Coin- 

manunl  and  princii)al  guide.    Originally  published  in  mentaries  upon  Littleton  in  one  large  folio,  page  for 

161.3,  in  law-French,  under  the  title  of  "  Nomolechnia,"  page  with  the  last  London  edition,  at  sixteen  Dollars  to 

with  a  long  sub-title,  an  English  translation  by  the  au-  subscribers,  although  the  London  edition  is  sold  at  32 

thor  was  published  fourteen  years  later.    It  was  anno-  Dollars  :  (2)  Bacon's  New  Abridgment  of  the  Law  in 

tated  by  Dunby  Pickering  in  1759.    Wood's  "  Institutes  five  volumes  4-to,  page  for  page  w  ith  the  last  London 

of  the  Laws  of  England,"  in  two  voUimes,  published  in  Edition  at  20  Dollars  to  subscribers,  although  the  Lon- 

1T22,  with  a  tenth  and  last  edition  appearing  in  1722—  don  edition  is  sold  at  40  Dollars  ;  (3)  the  second  edi- 

which  Blackstone  says  was  little  more  than  Finch's  tion  of  Blackstone's  Commentaries,  at   3  Dollars  per 

Discourse  modernized— paled  before  the  bright  light  of  volume." 
the  immortal  commentator.    Sir  Matthew  Hale's  "  His- 


HIS  POKY  OF  THK  1!i;n('ii  and  n.\n  of  m:\v   vokk  '.);{ 

ndluMviicc  lo  the  ci-owii,  :i,s  did  .laiiiicrv,  lli<' tii:is(<'r  of  tlifiolls;  Ixif, 
as  a  body,  the  lawyers  esiH)Used  (he  cause  of  tlieir  <'oiin(ry,  in  vvliose 
councils  many  of  them,  as  we  know,  attained  j)osilions  of  commanding 
influence.  It  was  a  freciuent  taunt  in  nunisterial  (nrcles,  at  West- 
minster, that  the  whole  unfortunat(>  trouble,  from  the  stamp  act  on  to 
the  Declaration,  was  an  all'air  of  the  colonial  lawyers.  Tliis  was,  in 
part,  the  truth.  But  that  the  cause  of  institutional  liberty,  fought 
out  here,  was  the  cause  of  England,  as  well  as  of  America,  has  been 
often  acknowledixed  in  the  mother  country;  for  "there  remains  no 
doubt,"  says  l^uckle,  "  that  the  American  war  was  a  great  crisis  in  the 
history  of  England,  and  that  if  the  colonies  liad  been  defeated,  our 
liberties  would  have  been  for  a  time  in  considerable  jeopardy."  ' 

>  "History  of  Civilization,"  i. 


JUDICIAL  ORGANIZATION  AND  LEGAL  ADMINISTRA- 
TION FROM  1776  TO  THE  CONSTITUTION  OF  1846. 


GKEAT  SEAL  OP  NEW  YORK. 


N  order  clearly  to  understand  how  the  law  was  administered 
in  the  State  of  New  York,  after  the  Declaration  of  In- 
dependence, it  is  necessary  that  one 
should  have  some  knowledge  of  the 
status  of  the  law  at  that  period  of  New  York's 
development. 

In  1756  William  Smith  wrote  a  "  History 
of  New  York,"  which  contains  a  good  account 
of  the  laws  and  of  the  courts  of  the  Colony 
or  Province  of  New  York  immediately  prior 
to  the  Declaration  of  Independence.  He  was 
well  qualified  to  speak  on  the  subject,  because 
he  was  himself  a  lawyer  of  ability,  and  was 
at  one  time  the  chief-justice  of  the  Supreme  Court  of  the  province.  He 
says  that  the  state  of  the  law  opened  the  door  to  much  controversy ;  that 
the  common  law  of  England  and  such  statutes  as  were  enacted  before  the 
province  had  a  legislature  of  its  own  were  generally  received ;  and  that 
the  practice  of  the  courts  was  uncertain,  some  of  the  English  rules 
being  accepted  and  others  rejected.  The  courts  named  by  him  are  the 
Justices'  Court,  the  Sessions  and  Court  of  Common  Pleas,  the  Supreme 
Court,  the  Court  of  Admiralty,  the  Prerogative  Court,  the  Court  of 

the  Governor  and  Council, 


and  the  Court  of  Chancery. 
Justices  of  the  peace,  he 
says,  were  appointed  by 
commission  from  the  gov- 
ernor ;  some  of  them  could 
neither  read  nor  write. 
Besides  their  ordinary 
powers  they  were  enabled 
by  acts  of  the  assembly  to 
hold  court  for  the  deter- 
fi  mination  of  small  cases  of 

—- — '^  £5    and    under,    but    the 

'^' '  parties  might  have,  if  they 

chose,  a  jury  of  six  men.    The  justices  had  jurisdiction  in  criminal  cases 
under  the  degree  of  grand  larceny,  and  any  three  of  them  might  try 


loIlK   SI  \I, 


111- 


)KV  (»K   I  in;  iiKNcii  AM)  iiAi:  OF  >i;\s    v 


a  criminal  witlioiit  a  jury,  ami  iiillid  punishment  not  cxlcndin;;  to  life 
or  limb. 

The  Court  of  Common  Pleas  had  co^^ni/ance  of  all  cases  where  the 
matter  in  demand  was  in  value  above  t'o.  'J'here  were  ordinarily 
three  judi^es  who  held  their  oflice  during  pleasure,  and  these  jiidpes, 
together  with  some  of  tin;  justices  of  the  peace,  held  at  the  same  time 
Courts  of  the  (General  Si'ssions  of  the  Peace. 

The  jurisdiction  of  the  Sui)reme  Court  extended  through  the 
whole  i)rovince,  and  its  powers  were  very  great,  for  it  took  cognizance 
of  all  causes  civil  and  criminal,  as  fully  as  the  King's  Bench  and 
Common  l*leas  at  Westminster.  In  civil  cases  the  value  of  the  sum 
demanded  must  exceed  £20.    It  held  court  four  times  in  the  year,  and 

always  at  New  York  ;  

it  had  a  chief-justice 
and  two  associate  jus- 
tices. The  chief-justice 
had  ten  shillings  as  a 
perquisite  upon  the 
first  motion  in  every 
case,  together  with  an 
annual  allowance  of 
£300.  The  judges  were 
judges  of  nisi  pritis, 
of  course,  and  went 
over  a  circuit  of  the 
counties  once  every 
year.  They  also  car- 
ried with  them  a  com- 
mission of  Oyer  and 
Terminer  and  general 
jail  delivery,  in  which 

some  of  the  county  justices  w^ere  joined.  In  1765  an  act  was  passed 
directing  barristers,  etc.,  to  wear  robes,  but  it  never  was  obeyed  by 
those  concerned. 

The  Court  of  Admiralty  had  jurisdiction  in  all  maritime  affairs, 
not  only  in  New  York,  but  also  in  New  Jersey  and  Connecticut.  The 
proceedings  were  according  to  the  course  of  the  civil  law. 

The  business  of  the  Prerogative  Court  related  to  the  probating  of 
last  wills  and  testaments,  and  the  granting  of  letters  of  administration 
on  intestates'  estate^.  The  powers  relative  to  these  matters  were  com- 
mitted to  the  governor,  who  acted  by  a  delegate. 

The  Court  of  the  Governor  and  Council  seems  to  have  been  an 
appellate  court,  in  all  cases  where  the  value  of  the  litigation  did  not 
exceed  £300  sterling. 


SHAKESrEARB  TAVERN,   CORNER  FULTON  AND  NAS9AU  STREETS.' 


>  This  tavern,  erected  many  years  before  the  Revo- 
lution, was  the  favorite  resort  of  prominent  lawyers, 
politicians,  statesmen,  and  other  celebrities  during  the 


last  part  of  the  eighteenth  century  and  the  first  thirty 
years  of  the  present  century.  It  was  demolished  in  18.36. 


96  HISTORY    OF  THE  BENCH   AND   BAR  OF   NEW   YORK 

The  Court  of  Chancery  was  the  most  obnoxious  of  all  the  courts 
to  the  people  ;  it  seems  to  have  had  the  same  jurisdiction  as  the  Court 
of  Chancery  at  Westminster. 

All  of  the  courts  mentioned  by  Smith,  except  the  Prerogative 
Court  and  the  Court  of  the  Governor  and  Council,  were  continued 
under  the  constitution  of  1777. 

This  in  brief  was  the  condition  of  affairs  relating  to  the  administra- 
tion of  Justice  on  the  19th  day  of  April,  1775,  the  day  on  which  the 
shot  was  fired  that  was  heard  around  the  world,  and  the  day  from 
which  the  legal  history  of  the  State  as  distinguished  from  the  Colony 
of  New  York  begins,  although  New  York  was  not  legally  declared  to 
be  a  state  until  July  8,  1776.  The  writer  does  not  wish  to  be  under- 
stood as  saying  that  it  was  because  the  battle  of  Lexington  was  fought 
on  the  19th  day  of  April  that  the  first  constitution  of  the  state 
declared  that  "  such  parts  of  the  common  law  of  England  and  of  the 
statute  law  of  England  and  Great  Britain  ....  as  together  did  form 
the  law  of  the  said  Colony  on  the  19th  day  of  April,  1775,  shall  be 
and  constitute  the  law  of  this  State."  The  convention  at  which  this 
constitution  was  adopted  met  on  the  20th  day  of  April,  the  Colony  of 
New  York  ceased  to  exist  on  the  19th  day  of  April,  and  the  State  of 
New  York  began  to  exist  on  the  20th  day  of  April,  1775. 

It  is  also  necessary,  in  order  fully  to  understand  the  administra- 
tion of  the  law  in  1775,  that  a  few  words  should  be  said  about  the 
people  among  whom  and  over  whom  the  law  Avas  administered. 

At  the  time  above  mentioned  the  pojDulation  of  the  state — white 
and  black — was  about  175,000.  It  was  divided  into  twelve  coun- 
ties—Suffolk, Queens,  Kings,  Richmond,  New  York,  Westchester, 
Dutchess,  Cumberland,  Gloucester,  Charlotte,  Orange,  Ulster,  Albany, 
and  Try  on.  New  York  county  was  not  the  largest,  although  it  was 
the  chief  place  of  trade  and  of  fashion  in  the  colony.  In  1771  Albany 
county  had  42,706  inhabitants,  Dutchess  22,101,  while  New  York  had 
but  21,863.  The  constitution  of  1777  gave  Albany  county  ten  members 
of  assembly.  New  York  nine,  Dutchess  seven,  and  Westchester  six. 
The  only  newspaper  outside  of  the  city  of  New  York  was  the  Gazette, 
which  was  established  at  Albany  in  1771.  There  w^ere  but  few  roads, 
and  most  of  them  were  poor  ones,  and  the  means  of  communication 
were  so  slow  that  news  of  the  battle  of  Lexington  did  not  reach  the 
City  of  New  York  until  the  21th  of  April.  The  inhabitants  were 
mostly  of  Dutch  descent,  although  there  were  many  settlers  of  English 
descent  in  some  of  the  counties,  notably  Suffolk  county. 

A  good  idea  of  the  lU'imitive  condition  of  the  country  may  be 
obtained  from  an  act  passed  on  the  19th  day  of  March,  1778.  It  is 
entitled  "  An  act  to  ascertain  the  places  fi'om  whence  the  milage  fees  of 
the  respective  sheriffs  of  the  several  counties  in  the  state  shall  be 
computed." 

It  provides  "  That  the  Sheriff  of  Suffolk  County  shall  compute  his 


llisiouv   oi'    iiii':   1!i;n(1i    ami   km:  (u     n  i  w    ^^>l,•K 


07 


•*.  t. 


98  HISTORY    OF   THE   BENCH    AND   BAH    OF   NEW  YOKK 

fees  from  a  path  commonly  known  as  the  Wading  River  Path,  about 
seven  miles  to  the  westward  of  the  County  Hall  in  said  County,  at  the 
Junction  of  said  path  with  the  County  Road  which  passes  through 
Nassau  Island,  about  the  middle  thereof ;  the  Sheriff  of  Queens  County 
from  a  certain  pond  commonly  called  AVind  JNIill  Pond,  near  the  north 
side  of  Hempstead  Plains  ;  the  Sheriff  of  Dutchess  County  from  the 
house  wherein  Myndert  Vielle  Esq.,  now  lives  in  Beekman's  Precinct ; 
the  Sheriff  of  Westchester  County  from  the  house  of  William  Ogden  in 
North  Castle  ;  the  Sheriff  of  the  County  of  Ulster  from  the  house  of 
Mrs.  Ann  DuBois,  in  the  neighborhood  of  the  New  Paltz  in  said 
county ;  the  Sheriff  of  the  County  of  Tryon  from  a  pass  in  the  mountain 
called  Anthony's  Nose  in  said  County  ;  the  Sheriff  of  the  County  of 
Charlotte  from  the  meeting-house  in  the  town  of  New  Perth,  and  the 
Sheriff  of  the  County  of  Gloucester  from  the  meeting-house  in  the  Town 
of  Newbury  in  said  County." 

At  the  time  of  the  Declaration  of  Independence  and  for  some  time 
thereafter  the  rules  relating  to  the  admission  of  attorneys  and  coun- 
sellors were  very  lax.  Smith,  in  the  History  above  referred  to,  com- 
plains that  the  door  of  admission  to  the  practice  of  the  law  was  too  open. 

The  usual  preparation  for  admission  to  the  Supreme  Court  was  a 
college  or  university  education  and  three  years'  apprenticeship,  or 
without  the  former,  seven  years'  service  under  an  attorne.y.  In  either 
of  these  cases  the  chief-justice  recommended  the  candidate  to  the  gov- 
ernor, who  thereupon  granted  a  license  to  practice,  under  his  hand  and 
seal  at  arms.  After  taking  the  usual  oath  the  person  then  became 
qualified  to  practice  in  every  court  in  the  province.  Attorneys  were 
admitted  into  the  county  courts  with  less  ceremony  ;  for  the  governor 
formerly  licensed  all  persons,  no  matter  how  indifferently  recom- 
mended, and  the  profession  was  shamefully  disgraced  by  the  admission 
of  men,  not  only  of  the  meanest  abilities,  but  of  the  lowest  employ- 
ments. 

The  constitution  of  1777  provided  that  all  attorneys,  solicitors,  and 
counsellors-at-law  should  be  appointed  by  the  court  in  which  they  were 
to  practice,  and  should  be  licensed  by  the  first  judge  of  such  court,  and 
should  be  regulated  by  its  rules  and  orders.  The  writer  has  not 
been  able  to  find  any  rule  in  the  Supreme  Court  relating  to  the  admis- 
sion of  attorneys  and  counsellors-at-law  of  an  earlier  date  than  those 
of  the  October  term,  1797,  which  are  to  be  found  in  Coleman  and 
Gaines's  ''  Cases  of  Practice,  determined  in  the  Supreme  Court  of  Judica- 
ture of  the  State  of  New  York,  from  April  term,  1 794,  to  November 
term,  1805,  both  inclusive.  To  which  is  prefixed  all  the  rules  and  orders 
of  the  Court  to  the  present  time." 

These  rules  provide  that  no  person  shall  be  admitted  to  practice 
as  an  attorney  of  the  Supreme  Court,  unless  he  shall  have  served  a 
regular  clerkship  of  seven  years  with  a  practicing  attorney  of  the 
court ;  but  any  period  of  time,  not  exceeding  four  years,  during  which 


iiisioKV  oi'  niio  hi:n(Ii  and  hau  ok  nkw   voi:k  '.)'.) 

a  person  al'lcr  lie  sliall  liavc  Ix-rri  roiii-tcfii  years  of  aiz;*'  sliall  have  |iiir- 
sucd  classical  stmlics,  shall  be  acc('|)lc(l  in  lien  of  an  f(|ual  itoition  of 
time  of  clerkship. 

These  rules  also  i)rovi(le  for  lilin<,^  a  cerf  ilicatc"  of  clerkship,  and 
that  if  the  clerkshij)  shall  be  intended  to  be  for  less  than  sev(Mi  years 
because  of  the  fact  that  the  ])ers()n  has  jjursued  classical  studies,  that  an 
ai)plicati()n  shall  be  first  made  to  a  jud^M',  who  on  examination  of  the 
matter  shall  make  an  order  which  is  to  be  aniu'xed  to  the  certilicafe, 
purjiortin^  that  it  satisfactorily  appears  to  him  that  the  person  api)ly- 
in^  has  pursued  classical  studies  after  Ik;  was  fourteen  years  of  a^e,  for 
such  a  j)eriod  of  time,  not  exceeding  four  years,  as  shall  be  specified 
in  the  order,  and  thereui)on  ordering  that  tlie  clerkship  shall  be  for  the 
term  which  shall  remain  after  deducting  from  seven  years  the  time  so 
to  be  specified  in  the  order.  After  four  years'  practice  an  attorney  was 
entitled,  as  of  course,  to  be  admitted  to  practice  as  coungel.  This  rule 
was  modified  by  a  rule  of  the  November 
term,  1804,  so  that  a  practice  of  but  three 
years  was  required.  By  a  rule  of  the 
August  term,  180(5,  it  was  jjrovided  that 
no  person  other  than  a  natural  born  or 
naturalized  citizen  of  the  United  States 
should  be  admitted  as  an  attorney  and 
counsellor  of  the  Supreme  Court  of  the 

olHie  or  xN  eW     lOllv.  tkovo^t  jau.,  now  hall  op  kecords. 

The  rules  relating  to  the  admission 
of  solicitors  in  chancery  are  substantially  to  the  same  effect,  except 
that  the  person  applying  to  be  admitted  was  examined  before  the 
chancellor,  vice-chancellor,  or  such  other  officer  of  the  court  as  the 
chancellor  directed  upon  a  special  order  for  examination  previously 
made. 

Rule  8  of  the  Supreme  Court,  passed  at  the  January  term,  1799, 
affords  an  instance  of  the  primitive  condition  of  the  State  of  New  York 
in  tliat  year.  It  requires  every  attorney  residing  in  the  City  of  New 
York  to  have  an  agent  in  the  City  of  Albany,  and  every  attorney  resid- 
ing in  the  City  of  Albany  to  have  an  agent  in  the  City  of  New  York, 
and  attorneys  residing  elsewhere  to  have  two  agents,  one  in  the  City  of 
New  York  and  the  other  in  the  City  of  AlbanJ^  The  object  of  this 
rule  Avas  to  make  it  less  difficult  to  serve  papers  on  attorney's  in  actions. 

Many  of  the  most  prominent  attorneys  and  counsellors-at-law 
either  sided  with  the  crown  or  were  lukewarm  toward  the  colony. 
For  that  reason  an  act  was  passed  in  1779,  which  recited  in  its 
preamble  that  many  persons  who  had  been  licensed  to  plead  and 
practice  as  attorneys,  solicitors,  and  counsellors-at-law  in  the  several 
courts  of  Law  and  Equity  within  the  State  whilst  the  same  was  under 
the  government  of  the  King  of  Great  Britain,  as  the  Colony  of  New 
York,  regardless  of  the  duty  which  they  owed  to  their  oppressed  coun- 


100  HISTORY   OF  THE  BENCH   AND   BAR   OF   NEW   YORK 

try,  had  some  of  them  gone  over  to  and  put  themselves  under  the  pro- 
tection of  the  armies  of  the  king,  and  others  had  conducted  themselves 
in  such  a  neutral  or  equivocal  manner  as  had  justly  rendered  them  sus- 
pected of  disaffection  to  the  freedom  and  independence  of  this  state  ; 
and  that  it  would  be  inconsistent  with  the  welfare  of  this  state  that 
such  persons  should  be  allowed  to  plead  and  practice  in  any  courts 
within  the  same ;  and  the  constitution  of  this  state  having  subjected 
to  the  rules  and  orders  of  the  Supreme  Court  only  such  attorneys, 
solicitors,  and  counsellors-at-law  as  should  thereafter  be  appointed,  the 
act  suspended  all  licenses  to  j^lead  or  practice  granted  to  attorneys, 
solicitors,  and  counsellors-at-law  before  the  21st  day  of  April,  in  the 
first  year  of  the  indejDendence  of  the  state. 

The  act  also  provided  that  persons  so  suspended  were  entitled  to 
have  a  writ  of  inquiry  into  their  political  character  issued  to  the  sheriff 
of  the  county.  The  sheriff"  thereupon  summoned  a  jury,  who  was 
directed  to  inquire  whether  the  person  suspended  had  uniformly  and 
consistently  conducted  himself  as  a  good  and  zealous  friend  of  the 
American  cause.  If  it  appeared  that  he  had  so  conducted  himself,  he  was 
restored  to  his  full  j^rivileges  as  an  attorney,  solicitor,  and  counsellor- 
at-law.  This  act  was  modified  somewhat  by  Chapter  13  of  the  laws  of 
the  fifth  session,  so  that  the  attorney-general  was  entitled  to  notice  of 
the  time  and  place  of  the  execution  of  the  writ  of  inquiry. 

But  while  many  lawyers  sided  with  the  crown,  we  must  not  forget 
the  debt  of  gratitude  we  owe  to  those  patriotic  lawyers  who  risked 
their  lives  and  fortunes  on  the  side  of  the  colony.  To  Livingston  and 
Jay,  to  Scott  and  Benson,  to  Yates  and  Morris,  we  owe  the  first  consti- 
tution of  the  state,  and  some  of  them  assisted  in  drafting  the  Declara- 
tion of  Independence  and  the  Articles  of  Confederation.  In  fact  no 
state  made  as  many  sacrifices  in  the  cause  of  free  government  during 
the  Revolution  as  did  the  State  of  New  York,  and  the  lawyers  of  the 
state  were  not  behind  the  rest  of  their  fellow-citizens. 

The  constitution  or  plan  of  government  adopted  on  the  20th  day  of 
April,  1777,  did  not  in  set  terms  create  the  Court  of  Chancery  or  the 
Supreme  Court,  or  in  fact  any  other  court ;  it  simply  recognized  cer- 
tain courts  as  then  existing.  For  instance,  it  provided  that  the  gover- 
nor for  the  time  being,  the  chancellor,  and  the  judges  of  the  Supreme 
Court,  or  any  two  of  them,  should  constitute  a  council  of  revision  to 
revise  all  laws  passed  by  the  legislature.  It  also  provided  that  the 
chancellor  and  judges  of  the  Supreme  Court  should  not  at  the  same 
time  hold  any  other  offices  excepting  that  of  delegate  to  the  general  con- 
gress on  special  occasions,  and  that  the  first  judges  of  the  County  Court 
in  the  several  counties  should  not  at  the  same  time  hold  any  other 
office  except  that  of  senator  or  delegate  to  the  general  congress  ;  but  if 
the  chancellor  or  any  other  of  said  judges  should  be  elected  or 
appointed  to  any  other  office  excepting  as  above  excepted,  it  should 
be  his  option  in  which  to  serve.     It  also  provided  that  the  register  and 


IIISIOKY    OK     I'lIK    Iii;.N< 


Il>l 


clcrUs  in  cliaiiccrN  should  Ix'  appointed  hy  liir  ciiaiicrllor- ;  llir  clnUs 
in  the  Suj)renie  Court  by  the  judges  ol'  said  court;  tlie  cU-rk  of  I  hi" 
Court  of  Probate  by  the  jud<?e  of  said  court,  and  tin;  register  ami 
UKirslial  of  tlie  Court  of  Admiralty  by  the  judge  of  tlu'  Court  of  Ad- 
nuialt y.  Said  ollicers  wen;  to  continue  in  ollice  duiing  the  pleasure  of 
those  by  whom  they  were  ai)pointed. 

'i'he  only  new  court  tliat  was  created  by  this  constitution  was  the 
Coui-t  for  the  Trial  of  Impeachments  and  Conection  of  lOriors,  under 


MoncUy,  Joly^.  1781: 


[No.   ,55.) 


N  E  W-Y  O  R  K  ^if^    GAZETTE: 

WEEKLY  ^^^UaP   MERCURY. 


^B^^0M^m>'  Jctelgn  ana  PomeBt, 


Containinci  tU  (atltd  aDDUcii 


tr  Printed   by    HUGH    GAINE,    at  the  BIBLB  a 

»D  CROWN.  IN  HAN(SVBR-SQJJARE. 

A    ,    ,    1     Z    »      .  .       B    R    B    A     D.   1       H  1  0  H  .W  A  T  ,  R    ^,    N  ,  w.V  0  .  K. 

Sir  ^ENRY'cLrNTON, 


"^"^""■"^'h.'clinton. 


General  Pardon. 


1      M.Hh  lUl.  .  HIT  J  ....i,..-  .»*  .1  ,U 


JOHN      PtLL. 

IN  ikt  !.•  xir.!)  (,.  m  Cn,l>Ml  luu  lr.lu^ 
<1  «EF  .n4  PORK,  0-™.  .~1  R.I.O  a 

Rrt'to.".,.'.';.  h...*  Cw.         1 


JOHN     HOULROYD. 


•Mhn«ft,iiih«(.i>»>UHQUEEN-|  HEAD,  bj 


_Ncw  R  '6"s"e  'b^UTT^E  1 
A-LEXiNrjER  wi  MU.LK 

OiD  v-'aomA  w°"„^;^i''• 


'i'iA-i-f.  111". 

n,],Mi>,„„,;„.,  ;.,.j-n.t„ ,.».,,..  14.™;. 
fju.u,.j,i„.,,-f".^  ■   ■■■■■  ■■■■"'■■■-■•"■■ 


Hrir.  b..  k„.  pi,.r-,/,o  „.r„  ,h,  o^„  of 


t-co)o.cl  de  Cochr()biorc(l. 
Col...el  CochV»htu(to  i.  ippoiolnl  n  tin 

Li.u..Btiic-Col»»cl  it  B>7.  ii  ifpoimel 
Oj.-ttr  M.l.r  Cenoil. 

Mijoi  Gtbiiil.  de  LsOtrt  uilda  BoTr,  n 

CapiiM  VoB  Alteat>oclE«t»,  of  Cea,  Lof' 
berg,  frs.  to  be  Major  of  th«  fiid  cotti. 

Oq  Snndijr  hisht  lid  thsgteoreLeli  la"i)»J 
at  ihe  bottom  01  CowDccic.  t*cni7  of  ihtn 
mx.ebctl  aboat  4  inile>  to  ibe  Heafr  of  Dani«l 
K  rr.tr..  ILfq:  <vb  cb  tber  ciiKrtd.  .od  inot  off 
Ma.ot  Kiflanof  t^Ra'a  cogni,  dII;,;.,  La 
yoottKC  broihtf  Berj^m'in  Ttfdnell  K-.ir.m. 
aod  Thomaf  Pea.fall,  a  rtr.ijtor.  Mi.  F..eh, 
Ibe  (OBVnioding  ifficet  of  the  pattjr.  bebave^ 

dtrAced  Mrt.  To«DQie«d,  11.  old  ladj'.-s^ 
Ihei  to  Jul! ice  SiiTeQ..  »iaio  bed. -The ^14^ 


t.  /J.  Hihit  a.u,ml  C.K.-i/Ulm  mrn^t,^ 


rules  that  should  be  established  by  the  legislature,  which  court  should 
consist  of  the  president  of  the  senate,  senators,  chancellor  and  judges 
of  the  Supreme  Court,  or  the  major  part  of  them,  except  that  when  an 
impeachment  should  be  presented  against  the  chancellor  or  either  of 
the  judges  of  the  Supreme  Court,  the  person  so  impeached  should  be 
suspended  from  exercising  his  office  until  acquitted,  and  in  like 
manner  when  an  appeal  from  a  decree  in  equity  should  be  heard  the 
chancellor  should  inform  the  court  of  the  reasons  for  his  decree,  but 


102  HISTORY    OP^   THE   BENCH    AND   BAR   OF   NEAV  YORK 

sliould  not  have  a  voice  in  the  final  judgment,  and  if  the  cause  to  be 
determined  should  be  brought  by  a  writ  of  error  on  a  question  of  law  on 
a  judgment  in  the  Supreme  Court,  the  judges  of  that  court  should 
assign  the  reason  of  their  judgment,  but  should  not  have  a  voice  in  its 
affirmance  or  reversal. 

The  power  of  impeachment  of  officers  of  the  state  for  mal  and 
corrupt  conduct  was  vested  in  the  representatives  of  the  people  in 
assembly. 

Section  34  provides  that  in  every  trial  on  impeachment,  or  in- 
dictment for  crimes  or  misdemeanors,  the  party  impeached  or  indicted 
shall  be  allowed  counsel  as  in  civil  causes. 

One  of  the  most  important  sections  is  the  35th,  which  provides  that 
such  parts  of  the  common  law  and  statute  law  of  New  York  and  Great 
Britain,  and  of  the  acts  of  the  legislature  of  the  Colony  of  New  York, 
as  together  did  form  the  law  of  the  colony  on  the  19th  day  of  April, 
1775,  shall  be  and  continue  the  law  of  this  state,  subject  to  such  limita- 
tion and  provision  as  the  legislature  of  this  state  shall  make  con- 
cerning the  same ;  that  such  of  said  acts  as  are  temporary  shall  expire 
at  the  times  limited  for  their  duration  respectively,  and  that  the 
resolves  or  resolutions  of  the  Colony  of  New  York,  and  of  the  con- 
vention of  the  State  of  New  York,  then  in  force  and  not  repugnant, 
shall  be  considered  as  making  parts  of  the  laws  of  this  state,  subject 
nevertheless  to  such  laws  and  provisions  as  the  legislature  of  the  state 
shall  make  concerning  the  same. 

The  41st  section  provides  that  the  trial  by  jury  in  all  cases  in 
which  it  had  been  used  in  the  Colony  of  New  Y^'ork  shall  be  estab- 
lished and  remain  inviolate  forever ;  that  no  acts  of  attainder  shall 
be  passed  by  the  legislature  of  the  state  for  crimes  other  than  those 
committed  before  the  termination  of  the  late  war ;  that  such  acts 
shall  not  work  a  corruption  of  blood,  and  that  the  legislature  of  the 
state  shall  at  no  time  institute  any  new  court  or  courts  but  such  as 
shall  proceed  according  to  the  course  of  the  common  law. 

It  may  be  noted  that  the  "constitution  or  plan  of  government" 
was  adopted  Sunday,  April  20,  1777,  by  the  delegates  of  the  provincial 
convention.  On  the  same  day  Mr.  Robert  R.  Livingston,  General 
Scott,  Mr.  Morris,  Mr.  R.  Yates,  Mr.  Jay,  and  Mr.  Hobart  were  ap- 
pointed a  committee  to  prepare  and  report  a  plan  for  organizing  and 
establishing  the  government  agreed  to  by  the  convention.  On  the  8th 
of  May  this  plan  was  finished  and  adopted. 

It  appointed  Robert  R.  Livingston,  chancellor;  John  Jay,  chief- 
justice  ;  Robert  Yates  and  John  Sloss  Hobart,  puisne  judges  of  the 
Supreme  Court,  and  Egbert  Benson,  attorney-general  of  the  state.  It 
also  appointed  Volkert  P.  Douw,  first  judge,  and  Jacon  TenEyck, 
Abraham  TenBroeck,  Henry  Bleeker,  Walter  Livingston,  and  John 
H.  TenEyck,  judges  of  the  County  of  Albany,  Henry  I.  Wardell, 
sheriff,  and  Leonard  Gansevoort,  clerk  of  said  county  ;  Epliraim  Paine, 


IllSlOIIV    OK     1111';    ltl;\(   11     AMI    BAU    <il'     Ni;\V     VUIIK 


KM 


/€ 


yi7' 


^M^Ara(^  ^'^i.ila-f*<y    <:'!pL^.^^  ^^  (k^^^^^p^^ 


104  HISTOEY    OF   THE   BEXCH    AND    BAR   OF   NEW   YORK 

first  judge,  and  Zeplianiah  Piatt  and  Anthony  Hoffman,  the  other 
judges  for  the  County  of  Dutchess,  Melancthon  Smith,  sheriff,  and 
Henry  Livingston,  clerk  of  said  county  ;  Lewis  Morris,  first  judge,  and 
Stephen  Ward  and  Joseph  Strang,  the  other  judges  for  the  County 
of  Westchester,  John  Thomas,  sheriff,  and  John  Bartow,  clerk  of 
said  county  ;  Levi  Pawling,  first  judge,  and  Dirck  Wynkoop,  Jr., 
judge  for  the  County  of  Ulster,  Egbert  Dumond,  sheriff,  and  George 
Clinton,  clerk  of  said  county ;  and  William  Duer,  first  judge, 
and  John  Williams  and  William  Marsh,  the  other  judges  for  the 
County  of  Charlotte,  Edward  Savage,  sheriff,  and  Ebenezer  Clarke, 
clerk  of  said  county.  No  judges  were  appointed  for  the  counties  of 
Tryon,  Orange,  Cumberland,  and  Gloucester,  but  blanks  were  left  in 
which  the  names  of  the  judges  for  these  counties  could  be  inserted. 
No  provision  was  made  for  the  appointment  of  judges  in  the  counties 
of  New  York,  Kings,  Queens,  Suffolk,  and  Richmond,  which  counties 
were  then  in  the  possession  of  the  British. 

The  persons  above  named  were  chosen  by  the  delegates  to  the  con- 
vention some  time  prior  to  the  8th  of  May.  There  were  two  candidates 
for  the  office  of  chancellor.  General  Scott  and  Robert  R.  Livingston. 
General  Scott  received  eight  votes  from  New  York,  four  from  Suffolk, 
and  three  from  Orange,  fifteen  in  all,  while  Mr.  Livingston  received 
six  votes  from  Albany,  five  from  Dutchess,  four  from  Westchester, 
four  from  Ulster,  and  two  from  Charlotte,  twenty-one  in  all,  whereupon 
he  was  declared  elected  chancellor.  General  Scott  received  the  same 
votes  for  the  office  of  chief -justice,  and  in  addition  one  vote  from  the 
county  of  Charlotte.  Mr.  Jay,  who  was  elected  to  the  position  of 
chief -justice,  received  Mr.  Livingston's  vote,  except  that  Charlotte 
county  gave  him  but  one  vote. 

There  were  three  candidates  to  fill  the  two  puisne  judgeships. 
Mr.  Yates  received  all  the  votes,  Mr.  Hobart  received  five  votes  from 
Dutchess  county,  and  General  Scott  received  all  the 
votes  from  the  other  counties.      General  Scott  im- 
mediately signified  his  disinclination  to  execute  the 
office  of  one  of  the  puisne  judges,  and,  refusing  to  ac- 
cept the  office,  Mr.  Hobart  was  elected.     The  same 
day  Mr.  Benson  was  elected  attorney-general.     Four 
of  the  six  members  of  the  committee  to  prepare  the 
NEW  YORK  COPPER       pi^ij  recelvcd  offices.     The  judicial  machinery  of  the 
State  of  New  York  was  now  in  working  order. 
On  the  5th  of  May  the  house  elected  the  judges  for  Albany 
county ;  on  the  Oth  the  judges  of  Dutchess,  Westchester,  and  Ulster 
counties.     The  salaries  of  the  judicial  officers  of  the  state  varied  from 
time  to  time.     Chapter  35  of  the  laws  of  1778  fixed  the  salary  of  the 
chancellor  for  his  services  in  that  station,  "  from  the  22d  day  of  May 
last  until  the  first  Monday  of  July  next,  exclusive  of  the  time  inter- 
vening between  the   17th  day  of  September  and   the  20th  day  of 


iiis'KiKv   or   iiiK  m:.N<ii  am 


>{■   m;\\    V( 


KC. 


OctoluM-  last."  at  llic  lal.-  of  L';!(»()  per  aiiiiiitii.  'I'lir  salai\  uf  llir  <-lii.-f- 
justico  was  fixed  at  llirsami-  rate,  and  that  of  llir  piiisiic  jud^^'s  at  tlir 
rate  of  £200  pci'  aimimi.  In  addition  to  the  alxtvc-iiiciitioin'd  siiiii,  the 
chiof-justi(!»»  and  the  piiisuo  jiid^e.s  i-Hccivcd  th<'  sum  of  forty  shillings 
each  for  eaeli  and  every  day  they  attendivl  on  ((iinniissions  of  Oyer 
and  Terminer  and  general  gaol  delivery  in  fli»>  several  counties, 
and  for  each  and  every  day  they  were  traveling  for  tliat  purpose. 
Chai)ter  'M,  passed  on  the  25th  of  October,  1770,  gave  Yates  and 
Ilobart,  "  for  extraordinary  duties  and  service  in  his  office  from  the 
nth  day  of  July  last,  and  in  consideration  of  the  advanced  prices  of 
the  necessaries  of  life,  the  sum  of  .$1,000  "  ea(;h. 

Chapter  .')4:  of  tlie  Laws  of  1770  gave  the  chancellor  £400  j)er 
annum,  the  chief  justice  £400,  and  each  of  the  i)uisne  judges  £:ioo 
per  annum.     The  chief-justice  and  the  puisne  judges  also  received  the 


sum  of  SlO  for  each  day  they  attended  on  the  execution  of  commis- 
sions of  Oyer  and  Terminer  and  general  gaol  delivery,  and  each  day 
they  travelled  for  that  purpose.  These  salaries  were  changed  but  little 
until  1813,  when  an  act  (Chapter  238)  was  passed  which  gave  the  chan- 
cellor, the  chief -justice,  and  the  judges  each  a  salary  of  83,500. 

In  addition  to  their  salary,  the  chancellor  and  judges  were  entitled 
to  receive  certain  fees,  w^hich  varied  from  time  to  time.  As  an  instance 
of  the  fees  received,  I  quote  from  an  act  passed  the  18th  of  April,  1785. 

The  chancellor  Avas  entitled  to  receive  for  the  seal  to  every  com- 
mon writ,  three  shillings ;  for  exemplifications,  twentj'  shillings ;  for 
every  decree,  £2  ;  for  every  opinion  or  order,  on  a  petition  or  motion, 
twenty  shillings  ;  for  every  order  appointing  a  guardian,  ten  shillings. 
The  master  in  chancery  was  entitled  to  receive  three  shillings  for  ever}' 
summons  ;  £1  for  every  report  or  certificate  made  pursuant  to  order ; 
live  shillings  for  every  certificate  or  report  made  upon  petition  or 
motion,  and  for  drawing  every  report,  one  shilling  per  sheet.     The 


106  HISTORY   OF   THE  BENCH  AND   BAR   OF  NEW   YORK 

judges  of  tlie  Supreme  Court  received  for  allowing  a  writ  of  error  or 
marking  the  roll  that  the  writ  is  allowed,  five  shillings ;  for  signing 
every  writ  of  privilege,  Jiabeas  corpus,  procedendo,  certiorari,  or  pro- 
hibition, three  shillings ;  for  acknowledging  a  deed,  four  shillings ; 
for  licensing  an  attorney,  ten  shillings ;  taxing  a  bill  of  costs,  six 
shillings  ;  and  every  attorney,  when  admitted,  paid  to  the  judges  who 
were  present  ten  shillings.  The  judges  attending  were  also  paid  five 
shillings  on  the  first  motion  in  every  cause,  except  a  criminal  one, 
which  money  was  divided  among  them. 

The  first  act  relating  to  the  revision  of  the  laws  of  this  State  was 
passed  on  the  15th  day  of  April,  1786.  The  preamble  of  the  act  calls 
attention  to  the  declaration  in  the  constitution  of  the  state  that  cer- 
tain parts  of  the  law  of  England  and  the  Colony  of  New  York  con- 
tinued to  be  the  law  of  this  state,  and  that  "  such  of  said  statutes  as 
have  been  generally  supposed  to  extend  to  the  late  Colony  of  New 
York  and  to  this  state  are  contained  in  a  great  number  of  volumes, 
and  such  statutes,  as  well  as  the  acts  of  the  legislature  of  the  late 
colony,  are  conceived  in  a  style  and  language  improper  to  appear  in 
the  statute-books  of  this  state."  It  directed  Samuel  Jones  and  Richard 
Yarick  to  collect  and  reduce  into  proper  form,  under  certain  heads  or 
titles  of  bills,  all  the  statute  laws  of  England  referred  to  in  the  con- 
stitution, and  all  public  acts  of  the  late  colony,  which  then  remained 
in  force,  and  to  lay  the  same  before  the  legislature,  from  time  to  time, 
in  order  that  such  of  them  as  should  be  approved 
by  the  legislature  might  be  re-enacted  into  laws  of 
this  state,  "  to  the  extent  that  wdien  the  same  shall 
be  completed,  then  and  from  thenceforth  none  of 
the  statutes  of  England  or  of  Great  Britain  shall 
operate  or  be  considered  as  laws  of  this  state.' '  The 
act  further  provided  that  after  this  had  been  done, 
a  compilation  of  all  the  laws  in  force  should  be 
"^^TOKEV Tm"  ™ade  and  printed,  except  that  only  the  titles  of  ob- 
solete acts  should  be  printed.  It  gave  the  com- 
pilers two  years  in  which  to  do  the  work,  and  allowed  each  a  yearly 
salary  of  £400.     The  book  was  printed  in  1789  in  two  volumes  folio. 

The  next  statute  relating  to  the  revision  of  the  law  was  passed  on 
the  28th  day  of  March,  1800.  It  appointed  James  Kent  and  Jacob 
Radcliffe  commissioners  for  such  purpose,  and  directed  them  to  collect 
and  reduce  into  one  act  all  parts  of  acts  relating  to  the  same  subject ; 
to  omit  therefrom  any  part  or  parts  of  acts  that  have  been  repealed,  or 
had  expired  by  their  own  limitation,  and  to  transcribe  all  such  acts  or 
parts  of  acts  and  lay  the  same  before  the  legislature  from  time  to  time, 
as  they  are  prepared,  to  be  re-enacted  as  the  legislature  should  think 
proper.  Two  years  were  given  to  them  in  which  to  do  the  work,  and 
an  allowance  of  $1,000  each  was  made  for  their  services. 

It  is  evident  that  the  commissioners  immediately  went  to  work, 


IIISTOUY    OK    TlIK    lUlNCII    AM)    I!Ai:    i>l'    M;\V     VoKK 


107 


booause  the  acts  passed  at  llic  noxt  (fwciily  sixlln  session  of  the  h-^^is- 
hitiire  took  iq)  as  imich  spacti  as  all  those  passed  at  the  thi(,'(!  or  lour 
preceding  sessions,  and  embraced  matters  relatinji^  to  the  ^rantin^  of 
letters  of  administration,  writs  of  error,  liabeas  corpus,  the  Court  of 
Oyer  and  Termiiu'r,  tiie  Court  of  Impeachment,  the  Supreme  Court, 
trial  of  issues,  and  writs  of  ccrliorari. 

Chapter  104  of  the  Laws  of  1801  (twenty-fourth  session)  also 
autliorized  Kent  and  Radcliffe  to  print  the  Laws  of  isol,  and  ^^avc;  to 
each  of  them,  for  his  services  in  reference  to  the  same,  the  sum  of  $850. 

^<tce#»t,  ^A^^a^a^  iyvcr  .^^i/tv^  a^f-  7^  ^ai^iC  J^jfi^A.  l^^'-> 


{ytOTcOoys^^  ff?u^i^<nc/And.  Aoefi  KuM^esLaJlu^Z^sfi^  *t^*iA^» 


ENT   LAWVEUS    AND   OTHERS. 


The  revision  of  Kent  and  Radcliife  was  j:)rinted  in  1802  in  two 
volnnies  octavo. 

The  third  revision  was  made  by  William  P.  YanNess  and  John 
Woodworth,  pursuant  to  Chapter  150  of  the  Laws  of  ISll.  It  is  con- 
tained in  two  volumes  octavo,  printed  in  1813. 

The  next  and  last  revision  was  made  under  Chapter  324  of  the 
Laws  of  1825,  Chapter  9  of  the  Laws  of  1827,  and  Chapter  321  of  the 
Laws  of  1828.  The  act  of  1825  authorized  John  Duer,  Benjamin  F. 
Butler,  and  Henry  Wheaton  to  make,  collate,  and  revise  certain  acts 


108  HISTORY   OF   THE   BENCH    AND   BAR   OF   NEW   YORK 

of  the  legislature.  Mr.  Wheaton,  upon  being  appointed  charge 
d'affaires  of  the  United  States  to  the  court  of  Denmark,  in  1827, 
resigned  his  office  of  commissioner,  and  Governor  DeWitt  Clinton 
appointed  John  C.  Spencer  in  his  place.  To  those  three  men,  Duer, 
Butler,  and  Spencer,  we  owe  a  revision  of  the  statute  law  of  the  state 
that  has  lasted  from  1827-8  to  the  present  time. 

There  were  two  revisions  of  the  laws  prior  to  the  adoption  of  the 
constitution  of  1777,  one  made  by  AVilliam  Livingston  and  William 
Smith,  pursuant  to  an  act  passed  in  1751,  and  the  other  made  by  Peter 
Van  Scliack,  pursuant  to  an  act  passed  on  the  24th  of  March,  1772. 
Van  Schaack's  revision  was  printed  by  Hugh  Gaine,  in  two  volumes 
folio,  although  it  has  the  i:)agination  of  one  volume.  The  reviser  was 
paid  £250  for  his  work,  and  the  printer  twenty  shillings  for  printing 
each  sheet.     Taking  it  altogether,  it  makes  a  very  presentable  book. 

The  earliest  record  relating  to  the  Court  of  Chancery  that  I  can 
find  is  the  book  of  "Chancery  Minutes,  June,  1785,  to  April,  1789." 
The  court  was  held  at  the  City  Hall  in  the  City  of  New  York.  The 
first  record  is  dated  June  10, 1785,  and  is  in  the  cause  of  Thomas  Vardill 
vs.  Lambert  Moore.  Mr.  Lewis  appeared  for  the  "complainant"  and 
Mr.  Troup  for  the  defendant.  In  the  next  cause  Mr.  B.  Livingston 
appeared  for  one  side  and  Mr.  Hamilton  for  the  other.  Six  matters 
came  before  the  court  on  that  day.  The  counsel  that  appeared,  besides 
those  above  mentioned,  were  Mr.  Cozine  and  Mr.  Dunscomb ;  Mr. 
Burr  had  a  cause  in  court  the  next  day.  On  the  28th  of  June,  the 
court  was  held  at  Claremont,  manor  of  Livingston.  On  the  28th  and 
29th  days  of  July  it  was  held  at  the  court-house  in 
the  City  of  Albany,  where  Mr.  Lansing,  Mr.  Cook, 
Mr.  B.  Livingston,  Mr.  Troup,  Mr.  Lush,  Mr.  Benson, 
Mr.  Burr,  and  Mr.  Lewis  ai)peared  as  counsel.  On 
the  17th  day  of  August,  court  was  again  held  at 
Claremont,  but  it  was  back  in  New  York  on  the  1st 
day  of  October,  on  which  day  the  only  business 
transacted  was  a  motion  by  Mr.  Lewis  of  counsel 
''-'token^'  irsr!^"  for  complainant  in  the  cause  of  Connor  vs.  Smith 
that  "  publication  pass  "  on  the  8th  day  of  October 
and  Mr.  B.  Livingston  of  counsel  for  defendant  consenting,  the  motion 
was  granted.  On  the  11th  day  of  November,  1785,  it  was  ordered 
that  Edward  Livingston,  one  of  the  attorneys  of  the  Supreme  Court, 
be  examined  by  Mr.  Lewis  and  Mr.  B.  Livingston  as  to  his  qualifi- 
cations for  admission  as  a  solicitor  in  chancery.  On  the  24th  day 
of  April,  1786,  they  reported  that  they  had  examined  him  and  found 
him  of  sufficient  ability  to  practice  as  solicitor  and  counsel  in  the 
court,  and  he  was  accordingly  admitted  as  such.  On  the  7th  day 
of  December,  1785,  at  a  "court  of  chancery  held  at  the  chancellor's 
chambers  in  the  city  of  New  York,"  the  chancellor  "ordered  Mr. 
John  Lansing  to  transmit  to  the  register  of  the  court  such  of  the 


IllsrolIV    (IK     I'llK    liKNCII    AM)    l»  A  i:    ftK    M,\V     VoUK  Id'.) 

rules  of  (his  coiiil  ;is  were  in  his  ])()ss('ssi()n,  fo^^cllii-r  with  :ill  oiIht 
papers  bclon^iii^  lo  the  court."  A  couit  of  chancery  was  hehl  on  iIh- 
17th  day  of  March,  178(5,  befoie  tlio  chancellor,  the  chief-justice  of  the 
Supreme  Court,  Uicluird  Morris,  and  .lohn  Sloss  Hol)art,  judi^e.  Tlie 
case  of  Joiin  Manns(>ll  et  al.  (ids.  Deboraii  Smith  was  l)efoie  the  court. 
The  entry  in  llie  book  is  as  foUows:  "this  day  after  debate  l)y  Mr. 
Burr  and  Mr.  Hamilton  of  counsel  for  defendants,  and  Mr.  JJ.  Living- 
ston of  counsel  for  comiilainauts.  respecting-  interest  to  be  allowed 
during  the  war,  the  Court  takes  time  to  consider  until  Friday  next." 
The  same  court  met  on  the  24th  of  Maich,  and  the  chancellor,  "after 
full  argument  and  mature  deliberation,"  decided  that  there  should  be 
no  allowance  of  interest  from  July  7,  177(5,  to  January  1,  1784.  The 
cause  appears  to  hare  been  one  to  recover  the  interest  on  a  legacy  of 
£1,000  from  July  7,  1707. 

Johnson,  in  the  ])reface  to  the  first  volume  of  his  Chancery  Reports, 
says  that  little  business  was  transacted  in  the  Court  of  Chancery  jirior 
to  its  organization  in  March,  177S,  under  the  constitution  of  the  state. 
I  have  caused  a  very  careful  examination  of  the  records  and  books  in 
the  office  of  the  clerk  of  the  City  and  County  of  New  York  to  be  made, 
and  have  succeeded  in  finding  but  one  book  of  records  prior  to  the 
Revolution,  and  that  is  the  minutes  of  the  court  from  April  5,  1770,  to 
January  9, 177(5.  I  do  not  think  that  any  business  was  transacted  in  the 
court  during  the  Revolution.  New  York  City  was  in  possession  of  the 
British  from  September  16,  1776,  to  November  2;i,  1783,  and  it  is  said 
that  when  they  left  the  city  they  took  with  them  all  the  reco-rds  of  the 
Court  of  Chancery  and  of  the  Supreme  Court. 
Our  first  chancellor,  Livingston,  could  not  have 
done  much  court  work  prior  to  the  evacuation 
because  of  the  state  of  the  country,  and  also  be- 
cause much  of  the  time  he  was  otherwise  engaged. 
For  instance,  he  was  secretary  of  foreign  affairs 
for  the  United  States  in  1781-8.  At  any  rate,  the 
first  record  of  his  holding  court  that  I  have  been  new  youk  coiter  -token," 
able  to  find  is  contained  in  the  Book  of  "  Minutes  '™- 

of  the  Court  of  Chancery  "  above  referred  to.  An  examination  of  the 
last  Book  of  Minutes  of  the  Colonial  Court  of  Chancery  and  of  the 
first  Book  of  Minutes  of  the  state  court  shows  that  the  business  in 
the  two  courts  was  about  the  same.  Most  of  it  related  to  infants  and 
lunatics. 

I  have  been  able  to  find  but  one  "  opinion  "  in  the  two  books,  and 
that  is  an  opinion  by  Governor  Tryon  in  the  case  of  the  Revei-end 
Joshua  Bloomer  vs.  Robert  Hinchman  and  Phillip  Edsall.  The  cause 
came  before  the  court  on  the  "id  day  of  November,  1771,  on  which 
day  Mr.  Scott  of  counsel  for  the  defendants  argued  in  support  of  a 
demurrer,  and  Mr.  Kempe  of  counsel  for  the  complainant  asked  a 
further  day  to  answer.    On  the  25th  day  of  the  same  month  the  court 


110  HISTORY   OF   THE   BENCH    AND   BAR   OF   NEW    YORK 

heard  "  in  part  *'  the  argument  of  counsel  for  the  complainant  against 
the  demurrer ;  the  next  day  complainant's  counsel  finished  his  argu- 
ment, and  on  the  16th  of  May  defendants'  counsel  was  heard  in  reply, 
and  the  court  ordered  that  the  demurrer  be  overruled,  and  that  the 
defendants  give  a  fuller  answer.  Certain  other  proceedings  were  had 
in  the  cause.  On  March  3,  1774,  Mr.  Duane  of  counsel  for  the  com- 
plainant was  ordered  to  deliver  to  the  defendants'  counsel  notes  of  his 
argument  within  ten  days,  and  defendants'  counsel  were  directed  to 
deliver  notes  of  their  argument  to  complainant's  counsel  within  ten 
days  thereafter,  and  the  cause  be  '•  finally  heard  the  next  term." 

The  cause  was  heard  on  the  fourth  of  April,  1774,  and  on  the  fifth 
of  the  same  month  the  court  rendered  the  following  opinion,  viz.  : 

New  York  Court  of  Chancery, 
5th  April,  1774. 

I  have  had  the  case  between  Mr.  Bloomer,  minister  and  the  Church  Wardens 
of  the  Parish  of  Jamaica,  long  under  consideration  and  have  reviewed  it  with  all 
the  deliberation  which  its  importance  required. 

To  me  it  appears  clear  from  the  authorities  produced  and  arguments  advanced 
in  the  hearing  of  the  cause,  that  the  National  Church  of  England  is  established 
within  this  Colony.  That  the  Provision  by  the  Ministry  Acts  in  question  was 
intended  and  can  only  be  applied  for  the  support  of  the  Clergy  of  that  Church,  and 
that  in  case  of  a  Lapse,  the  Governor  by  virtue  of  his  delegated  authority  from  the 
Crown,  as  well  as  by  the  terms  of  the  Acts  themselves,  has  a  right  to  collate  ;  upon 
these  principles  in  general,  I  am  of  opinion  that  Mr.  Bloomer  is  duly  collated  and 
inducted  to  the  care  of  the  Parish  of  Jamaica.  That  his  title  is  well  established  and 
that  he  is  the  lawful  incumbent. 

I  do  therefore  decree  that  the  defendants  shall  on  or  before  the  fourth  day  of 
J  une  next,  at  the  door  of  the  Parish  Church  of  Jamaica,  and  between  the  hours  of 
ten  and  twelve,  in  the  forenoon,  pay  Mr.  Bloomer  his  salary  from  the  time  of  his 
Induction  on  the  23rd  day  of  May  1769  to  the  commencement  of  his  suit  in  this 
Court,  out  of  any  monies  that  may  have  accrued  under  the  Ministry  Act  and  have 
been  received  by  the  defendants  as  Church  Wardens,  prior  to  the  filing  of  the  Bill, 
but  without  any  interest. 

It  appears  from  the  answer  that  the  defendants  according  to  the  advice  of  their 
counsel  were  in  doubt  of  the  validity  of  Mr.  Bloomer's  title  and  there  having  hith- 
erto been  no  judicial  determination  upon  the  point,  I  do  not  think  it  reasonable  to 
order  them  to  pay  the  costs,  which  therefore,  must  be  sustained  by  the  respective 
parties,  and  as  to  the  salary  which  has  accrued  to  Mr.  Bloomer  since  filing  the  Bill, 
it  can  not  properly  be  comprehended  in  this  Decree;  but  I  however  do  recommend 
it  to  the  Parish  of  Jamaica  to  pay  all  arrears  of  salary  to  the  Rev.  Mr.  Bloomer  that 
are  due  to  him  since  the  filing  of  the  Bill,  as  any  delay  or  further  dispute  would 
justly  subject  them  to  the  payment  of  costs.  WILLIAM  TRYON. 

The  last  entry  contained  in  this  book  is  of  an  application  made 
before  "  His  Excellency  William  Tryon,  Esq.,  Captain  General  and 
Governor  in  Chief  in  and  over  the  Province  of  New  York  and  the  Ter- 
ritory depending  thereon  in  America,  Chancellor  and  Vice- Admiral  of 
the  same,"  for  the  appointment  of  a  guardian  for  two  infants,  on  the 
9th  day  of  January,  1776.  The  new  book  of  "  Minutes  "  begins,  as  we 
have  seen,  on  the  10th  of  June,  1785. 


i;y  <>i'   iiiK  hi;n( 


AM)    liAi: 


m:w  V()i:k 


The  Coiiil  of  Cliaiiccry  \v;is  iiol  oi«:,;mi/f(I  l)y  iIk-  (•(nivnil  ion  of 
rej)r('S(>nt:itiv('s  of  the  State  of  New  York  until  May,  1778,  althoii^^h 
Liviii<j:,st()n  had  been  appointed  clnnu^ellor  as  early  as  1777.  TIk!  fiist 
rules  relatini;'  to  the  court  were  niadi^  by  (Chancellor  Livingston  in  I7.S7, 
and  are  to  Ixi  found  in  Vol.  ',i,  Minutes  of  Chancery.  He  served  until 
October,  1801,  when  he  resi<i;ned  upon  his  bein<^  a])pointe{l  ininist<'r  to 
France.  I  have  not  been  able  to  lind  any  of  his  oi)inions  as  chancellor. 
He  was  succeeded  by  .loiin  Lansing,  Jr.,  who  was  chief-justice  of  the 
Supreme  Court  at  the  time  he  received  the  appointment  of  chancellor. 
Chancellor  Lansing  served  until  Octobei-,  1814,  when  he  was  succeeded 

NEW- YORK  EVENING  POST. 


a^Js^S, 


'}UMa\TJO>t  LKta^x 


.^:-T3i€2^.5*'.^ 


H*lLir'j?:~t.'V.'t.TrS 


FA(  --^IMIl.E    OF   ORK^NAL   ISSUl 


by  James  Kent,  because  he  was  no  longer  eligible  by  reason  of  age.  He 
mysteriously  disappeared  in  1829.  He  left  his  hotel  to  post  a  letter  on 
board  the  Albany  boat  at  the  foot  of  Cortlandt  street  and  never  was 
heard  of  afterward.  The  Emmng  Post  of  December  24,  1829,  con- 
tained the  following  notice  of  his  disappearance  : 

On  Saturday  evening,  12st  inst..  Chancellor  Lansing  of  Albany  arrived  in  this 
city  and  put  up  at  the  City  Hotel  ;  he  breakfasted  and  dined  there.  Shortly  after  din- 
ner he  returned  to  his  room  and  wrote  for  a  short  time,  and  about  the  hour  that  per- 
sons intending  to  go  to  Albany 'eave  the  hotel,  he  was  observed  to  leave  his  room. 
He  has  not  been  seen  or  heard  of  since  that  time.     He  left  his  trunk,  cane,  &c. ,  in 


>  The  New  York  Ereninrj  Po.it.  the  firnt  niimbor  of  first  editor.  William  Coleman,  was  also  an  able  lawyer, 

which  was  issued  November  10,  1801,  was  established  and  though  the  political  ally  and  friend  of  Hamilton, 

as  a  Federalist  organ  under  the  patronage  of  the  emi-  had  formerly  been  the  law  partner  of  Aaron  Burr, 
nent  lawyers,  Alexander  Ilamilton  and  John  .Jay.     The 


112  HISTOKY    OF   THE   BE;NCH   AND   BAR   OF   NEW   YORK 

his  room.  His  friends  iu  this  city  have  heard  this  morning  from  Albany  that  he 
has  not  returned  home. 

It  is  supposed  he  had  written  a  letter  and  intended  to  put  it  on  board  the  steam- 
boat that  left  here  at  five  o'clock.  He  had  made  an  engagement  to  take  tea  at  six 
that  evening  with  Mr.  Robert  Ray  of  this  city  at  29  Marketfield  Street. 

He  w^  dressed  in  black  and  wore  powder  in  his  hair.  He  was  a  large,  muscu- 
lar man,  about  five  feet  nine  inches  in  height,  and  upwards  of  seventy-six  years  of 
age. 

He  was  in  good  health,  and  has  never  been  afl'ected  by  any  mental  aberration. 
Any  intelligence  concerning  him  will  be  gratefully  acknowledged  by  his  afflicted 
friends  and  family,  if  left  for  them  at  the  bar  of  the  City  Hotel. 

The  morning  papers  are  requested  to  copy  this  notice. 

The  third  chancellor,  Kent,  was  born  on  the  31st  day  of  July,  1763, 
in  what  is  now  Putnam  county,  but  was  then  Dutchess  county,  New 
York.  He  was  graduated  from  Yale  College  in  the  class  of  1781,  stud- 
ied law  with  Egbert  Benson,  and  was  admitted  to  practice  as  attorney 
in  1783  and  as  counsel  in  1787.  He  was  admitted  as  solicitor  and  coun- 
sel in  the  Court  of  Chancery  on  the  18th  day  of  March,  1794,  on  the 
motion  of  Edward  Livingston.  The  first  record  that  I  can  find  of  him 
in  the  Court  of  Chancery  is  on  the  20th  day  of  May,  1794,  when  he 
appeared  as  solicitor  for  the  complainant  in  the  case  of  Cullen  against 
Cullen.  In  1796  he  was  appointed  master  in  chancery ;  in  1797  re- 
corder of  the  City  of  New  York  ;  in  1798  he  succeeded  Lansing  as 
puisne  judge  of  the  Supreme  Court,  of  which  court  he  became  chief- 
justice  in  July,  1804.  It  is  said  that  he  was  the  first  of  the  judges  in 
this  state  to  write  opinions.  At  any  rate  his  are  the  earliest  opinions 
extant.  In  1814  he  succeeded  Lansing  as  chancellor,  which  office  he 
lilled  until  he  reached  the  age  of  sixty  years,  in  1823.  In  1834  he  lived 
two  or  three  miles  from  the  heart  of  the  City  of  New  York,  where  he 
was  visited  by  Charles  Sumner,  who  remarked  upon  his  frankness  and 
simplicity,  his  bad  grammar  in  conversation,  his  passion  for  reading 
novels,  and  his  violent  hatred  of  General  Jackson. 

He  was  succeeded  by  Nathan  Sandford,  who  held  the  office  for 
four  years,  when  he  resigned  on  account  of  ill-health.  The  next  chan- 
cellor was  Samuel  Jones.  Mr.  Jones  was  a  graduate  of  Columbia  Col- 
lege in  the  class  of  1790.  He  studied  law  in  the  office  of  his  father, 
who  was  the  reviser,  and  was  successively  member  of  assembly,  re- 
corder of  the  City  of  New  York  in  1823,  chief-justice  of  the  Superior 
Court  of  the  City  of  New  York,  1828^7,  and  justice  of  the  Supreme 
Court  of  the  State,  1847-9. 

Chancellor  Jones  was  succeeded  by  Chancellor  Walworth,  who 
was  the  last  chancellor  of  the  state.  At  Saratoga  Charles  Sumner  met 
Chancellor  Walworth  and  Judge  Cowen.  He  said  that  they  were  both 
mere  book  men  and  that  Judge  Oakley  of  the  Superior  Court  was 
an  abler  man  than  either.  When  AVal worth  was  made  chancellor  he 
delivered  an  address  to  the  bar,  in  which  he  said  :  '•  In  assuming  the 
duties  of  this  highly  responsible  station,  which  at  some  future  day 


iiisioitv  OK    iiii':  KKNcii    A.M>   MA  11  OK   m;\v    voi:k  11:{ 

would  li:i\('  bt'cii  tlir  liiuhrsl  olijccl  of  my  Miiihil  ion,  pfiiiiil  iiir  to  say 
that  the  solicitations  of  my  too  iKUtial  friends  rallicr  than  my  oun 
inclination  or  judgment  havc!  indncccl  mc*  to  consent  toocciipy  ii  at  this 
time.  Brouijht  up  a  farmer  till  the  age  of  seventeen,  deprived  of  all 
tlie  advantages  of  a  classical  education,  and  with  a  very  limile(l  know 
ledge  of  chancery  law,  I  find  myself,  at  the  age  of  thirty-eight,  sud 
denly  and  unexi)ectedly  placed  at  the  head  of  the  justices  of  the  state, 
a  situation  which  has  heretofore  been  tilled  by  the  most  able  and  ex- 
])erienced  members  of  the  profession."  This  address  was  put  into 
rhyme  by  a  wit  of  the  day,  which  rhyme  T  quote  from  memory : 

At  the  early  age  of  thirty-eipht 

I  became  cliancellorof  this  great  state  ; 

That  I  am  cliancellor  is  clear. 

But  liow  ill  Heaveu  got  I  here  ? 

It  is  said  that  Aaron  Burr  advised  the  chancellor  not  to  publish 
his  address,  because,  "if  the  people  read  it,  they  will  say  if  you  knew 
you  were  not  qualified,  why  the  devil  did  you  take  the  office  i "  It  is 
also  said  that  the  oflice  was  offered  to  all  the  judges  of  the  Supreme 
Court  and  declined  by  them,  before  it  was  offered  to  Mr.  Walworth. 
In  his  latter  days  the  chancellor  was  a  small,  lean  man  with  long,  iron- 
gray  hair  and  beard.  Although  he  was  a  teetotaler  and  piresident  of 
the  American  Temperance  Union,  Mr.  Seward  once  said  of  him  that  he 
and  another  well-known  New  York  politician  could  drink  more  brandy 
and  water  than  any  two  other  men  in  the  State.  When  his  attention 
was  called  to  the  fact  that  the  chancellor  was  a  teetotaler  and  he  was 
asked  to  explain  what  he  meant,  he  said  the  chancellor  would  drink 
the  water  and  the  other  fellow  the  brandy.  But  notwithstanding  the 
fact  that  the  chancellor  was  a  teetotaler,  his  opinion  in  the  case  of 
Nevin  against  Ladue,  3  Denio  437,  is  a  very  learned  one  on  the  ques- 
tion whether  or  not  ale  and  strong  beer  are  included  in  the  terms 
strong  and  spirituous  liquors,  as  used  in  the  statute  making  it  penal 
to  sell  such  liquors  at  retail  without  a  license.  The  opinion  takes  up 
fourteen  pages  of  the  report,  and  in  it  the  learned  chancellor  begins  at 
the  beginning  and  traces  beer  from  its  earliest  history  to  the  time  at 
which  he  wrote. 

The  chancellor  was  fond  of  tracing  his  descent  from  Walworth, 
the  mayor  of  London,  who  had  the  little  difficulty  with  Watt  Tyler,  in 
the  reign  of  Richard  II.  This  fact,  it  is  said,  prevented  President 
Tyler,  who  claimed  that  he  was  a  descendant  of  Watt  Tyler,  from  ap- 
pointing Chancellor  Walworth  justice  of  the  Supreme  Court  of  the 
United  States.  When  President  Tyler  s  attention  was  called  to  the  fact 
that  the  chancellor  claimed  descent  from  Lord  Mayor  Walworth,  he 
withdrew  the  chancellor's  name  and  substituted  that  of  Samuel  Nelson, 
who  was  so  many  years  on  the  bench  of  the  Supreme  Court  of  the 
United  States. 


114 


mSTOKY  OF  THE  BENCH  AND  BAR  OF  NEW  YORK 


The  constitution  of  1821  authorized  the  governor  to  nominate,  and 
with  the  consent  of  the  senate  to  appoint,  masters  and  examiners  in 
chancery,  who  held  their  offices  for  three  years.  It  also  authorized 
the  chancellor  to  appoint  a  register  and  assistant  register,  who  held 
their  office  during  the  chancellor's  pleasure.  It  is  said  that  in  1823 
there  were  510  masters  in  chancery  in  the  state  and  25  examiners.  In 
1831  the  office  of  vice-chancellor  was  created  in  the  first  circuit,  and 
in  March,  1839,  another  in  the  eighth  circuit,  at  which  time  an  assistant 
vice-chancellor  was  also  appointed  in  the  first  circuit.  The  office  of 
chancellor  was  abolished  by  the  constitution  of  1846. 

As  we  have  seen,  Jay  was  made  chief -justice  of  the  Supreme 
Court,  and  Yates  and  Hobart  puisne  judges  thereof,  in  1777.  Jay 
remained  chief-justice  until  1779,  when  he  was  succeeded  by  Richard 


NORTH   EVD   OP  CITY   HALI    PARK     1825 


Morris,  who  held  the  office  for  eleven  years.  Among  others  who  have 
been  chief -justices  of  the  Supreme  Court,  I  may  mention  Ambrose 
Spencer,  Samuel  Nelson,  Greene  C.  Bronson,  and  Samuel  Beardsley, 
who  was  chief-justice  when  the  constitution  of  1846  took  effect. 

For  a  little  while  we  had  a  High  Court  of  Admiralty  in  this  state. 
On  the  25th  of  November,  1775,  the  continental  congress  recommended 
the  colonies  to  establish  courts  to  adjudicate  questions  that  might 
arise  relating  to  captures  on  the  seas  during  the  War  of  Independence, 
and  that  all  trials  be  by  jury.  On  the  31st  of  July,  1776,  Richard 
Morris  was  appointed  judge  of  the  High  Court  of  Admiralty  of  this 
state ;  John  McKesson,  register,  and  Robert  Benson,  marshal  and 
provost  marshal.  Mr.  Morris  declined  to  act  as  judge  because  his 
family  needed  all  his  time  and  attention,  and  on  the  5th  day  of  August 
following  Lewis  Graham  was  appointed  in  his  place.  A  committee 
was  named  to  report  what  fees  they  thought  proper  to  be  taken  by 
the  officers  of  the  court, 

Mr.  Morris  must  have  changed  his  mind  about  his  family,  because, 


III> 


III';    liKNCII     AM>    ItAi: 


ii: 


ONE   CEXT.  I 

;  Corporotian  of  Oie  City  at'        # 
'ark  TOHinvLse  to  yuv  tlif  JJeartT    •^  ? 

ONE    J  CENT 


•r,  New  YoTlt  pr<iiiu,se  to  7)uy  tlit- JJearw 
'      on  cleiuanid 


as  \v<>  have  seen,  in  177'.*  In'  bccaiiii'  cliicr  jnslici"  of  llir  Sii]ir('riif  Coiirf 
ol'  fliis.s(al(>. 

Tlic  Court  of  Admiralty  was  al)olislh"(|  upon  tli.-  adoption  of  tin- 
(•onstitiitionot"  (lie  I'liitcd  Stairs,  which  vested  admiralty  Jurisiliction 
cxchisivcly  in  tho  ftnU'ral  conrts. 

Tlie  (Jourt  I'or  tho  Trial  of  linpcachnicnts  and  the  Corrcclion  of 
Errons  was  organized  by  cliapte^r  11  of  the  laws  of  the  eighth  session, 
passed  on  the  2.'}d  of  Novend)er,  17S4.  That  act  provided  that  "  tlu^ 
court  shall  sit  dui'ing  the  session  of  the  legislature  on  such  days  and 
at  such  ])]aces  as  tlie  court  shall  from  time  to  time  apj)oint  ;  tluit  all 
writs  and  proceedings  shall  be  made  in  the  name  of  tlie  j)eoi)le  of  the 
State  of  New  York,  and  attested  by  the  jjresident  of  the  senate  and 
signed  by  the  clerk  of  the  court  ;  that  all  imi)eachments  shall  be  de- 
livered to  the  presiilent  of  the  senate,  who  shall  thereni)on  immediately 
cause  the  court  to  be  summoned,  and  the  court  shall  thereupon  foitli- 
with  cause  the  person  so  impeached  to  appear  and  be  brought  before 
it  to  answer  the  charge  exhibited  against  him.  On  thus  appearing  he 
shall  be  entitled  to  have  a  copy  of 
such  impeachment,  and  have  a 
reasonable  time  to  answer  the  same. 
After  issue  lias  been  joined  the 
court  shall  appoint  a  time  and 
place  for  the  trial  thereof."  No 
judgment  of  conviction  could  be 
given  unless  two-thirds  of  the  mem- 
bers of  the  court  then  present  as- 
sented thereto.  If  two-thirds  of 
the  members  of  the  court  present  at 
the  time  did  not  assent  to  a  judg- 
ment of  conviction,  the  person  impeached  was  considered  as  acquitted 
from  such  impeachment.  No  jutlgment  or  sentence  of  conviction  could 
extend  further  than  disqualifying  the  person  from  ever  holding  any 
place  of  honor,  trust,  or  profit  in  the  state.  A  conviction  or  acquittal 
still  left  the  jierson  impeached  subject  to  indictment,  trial,  and  pun- 
ishment according  to  the  laws  of  the  land. 

The  power  of  impeachment  of  officers  of  the  state  was  vested  in 
the  representatives  of  the  i)eople  in  assembly.  No  impeachment 
could  be  ordered  except  with  a  two-thirds  vote  of  all  the  members 
present.  Any  officer  impeached  was  restrained  from  exercising  his 
office  until  his  acquittal. 

That  act  also  provided  that  all  errors  happening  in  the  Court  of 
Chancery,  Supreme  Court,  the  Court  of  Probates,  and  Court  of  Ad- 
miralty, except  in  cases  of  capture,  should  be  redressed  and  corrected 
by  the  court  instituted  by  it. 

Any  person  against  whom  any  judgment  was  given  in  the  Supreme 
Court  might  sue  forth  out  of  the  Court  of  Chancery  a  writ  of  error  ad- 


OXK  rE?<T      1  Cent  5 


116  HISTOKY    OF   THE   BENCH    AND   BAR   OF   NEW   YORK 

dressed  to  the  Supreme  Court,  commandino;  them  to  cause  the  record 
of  such  judgment  and  all  things  concerning  the  same  to  be  brought 
before  the  president  of  the  senate,  senators,  and  chancellor,  and  full 
power  to  examine  all  such  errors  was  given  to  them,  with  power  also 
to  reverse  or  affirm  such  judgment  and  to  give  such  other  judgment 
therein  as  the  law  should  require.  No  judgment  could  be  entered 
unless  a  quorum  of  the  court  was  present,  but  if  such  quorum  was  not 
present  the  case  could  be  adjourned  to  some  future  day. 

Any  person  aggrieved  by  any  sentence,  judgment,  or  order  of  the 
Court  of  Chancery  couid  appeal  from  the  same,  or  any  part  thereof,  to 
the  president  of  the  senate  for  the  time  being,  and  the  senators  and 
judges  of  the  Sui:)reme  Court,  and  the  court  had  power  to  reverse  or 
affirm  said  judgment,  order,  or  decree,  and  make  such  other  judgment, 
order,  or  decree  as  equity  and  justice  required.  All  appeals,  except 
those  from  final  decrees,  were  required  to  be  taken  within  fifteen  days 

next  after  the  entry  of  the  orders 

P      ''J b our  Cents.          [^      *  j^^y  person  aggrieved    by  any 

I  cr^^>^T,^k7^^^e"^?a*tteBLa•^  I  Sentence,   judgment,  or  decree   of 

I  g  ai  daiuoui.      ^                     O  I  the  Court  of   Probates   or  of  the 

*  W    FOUR    't:  cents.  ^  t  Court  of  Admiralty,  except  in  the 

i                                                  G  t  case  of  captures,  could  appeal  from 

J  g  ■%'^tJ^'^;::y^''^Z'-   3  #  the  same  or  any  part  thereof  to  the 

»  ^                   QyA^c^^yi^     !/)  I  president  of  the  senate  for  the  time 

\      —-, z=, — — —  ■    #  being,    senators,    chancellor,    and 

had   full  power  and  authority  to 

NEW    YORK  CITY   CURRENCY,    1814.  '- 

examine,  hear,  and  determine  all 
such  appeals,  and  all  matters  concerning  the  same,  and  to  reverse, 
affirm,  or  allow  such  sentence,  judgment,  or  decree,  and  to  make  such 
other  order  or  decree  therein  as  equity  and  justice  required.  Appeals 
were  required  to  be  taken  within  fifteen  days  after  making  or  giving  of 
the  sentence,  judgment,  order,  or  decree  appealed  from. 

The  act  also  provided  that  the  president  of  the  senate  should  have 
a  casting  vote  in  cases  of  ties,  but  should  not  vote  in  any  other  case 
whatever.  All  appeals  from  judgments  or  definitive  sentences  should 
be  brought  within  five  years  and  all  writs  of  error  in  civil  and  criminal 
cases,  not  capital,  should  be  considered  writs  of  right  and  should  issue 
as  of  course.  In  capital  cases  writs  of  error  were  considered  writs  of 
grace  and  did  not  issue  except  by  order  of  the  chancellor  for  the  time 
being,  made  after  petition  and  notice  to  the  attorney-general  or  prose- 
cuting officer  for  the  state. 

The  Court  of  Exchequer  was  organized  by  an  act  passed  February 
9,  1786,  which  empowered  the  junior  justice  of  the  Supreme  Court,  or 
in  his  absence  one  of  the  puisne  justices  of  the  same  court,  to  hold  a 
court  for  the  hearing  and  determination  of  all  causes,  motions,  and 


UK    HK.NC 


17 


lliinii's  conctMiiiiin-  lines,  forfeitures,  issues,  wiiierciiinieMls,  niid  dehls 
due  to  the  ju^jple  of  this  state  aecoiding  to  law  and  tlie  couise  of 
the  Exchequer.  This  court  was  to  be  hehl  duriii<^  every  term  of  tlie 
Supreme  Court  or  during  such  i)art  thereof  as  sliould  be  necessary, 
and  in  some  convenient  i)hu'e  near  where  the  said  Supreme  Court  was 
sitting.  The  court  had  a  seal,  and  a  clerk  who  was  ai)i)ointed  by  the 
justices  of  the  Supreme  Court.  The  justice  wlio  was  holding  the  court 
was  not  allowed  to  receive  any  fees  for  any  services,  "his  salary  and 
fees  as  justice  of  the  Supreme  Court  being  considered  as  full  compen- 
sation for  the  services  as  aforesaid." 

William  Popham  was  appointed  clerk  of  this  court  on  the  17th  of 
July,  178(5,  and  held  the  office  until  the  court  was  abolished  on  the  1st 
of  January,  18:50,  as  provided  by  the  repealing  act  of  December,  1828. 

During  the  colonial  period,  the  governor  or  person  administering 
the  government  granted  i)robates.  By  an  act  passed  the  16th  of  March, 
1778,  the  judge   of    the    Court   of 


SIX  CENTS. 


Tlif   Corpdpatim  «f  tlw  City  of 

New  Yorii  patinu.sr  to  £)tty  thf  Bfurtr 

.  an  denial)  d 


SIX 


(>(E 


ENTS. 


^y^u-YorA-  2(ith  /)rrnnt>er,lH\i. 
By  Ordw  oT  th«--n»y(iratiuix, 


NEW   YORK  CITY  CURRENCY,   1814. 


Probates  was  vested  with  all  and 
singular  the  powers  and  authorities 
that  the  governor-general  or  com- 
mander-in-chief of  the  colony  for 
the  time  being  had  and  exercised 
as  judge  of  the  Prerogative  Court, 
except  as  to  the  nomination  of  sur- 
rogates in  the  several  counties,  who 
Avere  to  be  appointed  by  the  Council 
of  Appointment  and  commissioned 
under  the  Great  Seal.  The  same 
act  directed  the  judge  of  the  Court 
of  Probates  to  cause  a  seal  of  his  court  to  be  made.  An  act  passed  in 
1787  authorized  the  appointment  of  surrogates  in  each  county.  The 
Court  of  Probates  had  appellate  jurisdiction  over  the  Surrogate's 
Court.  It  was  abolished  in  1833.  The  office  of  surrogate  continues 
until  the  present  day. 

AYe  have  seen  that  the  constitution  of  1777  recognized  the  exist- 
ence of  the  county  courts  and  that  certain  men  were  appointed  in  that 
year  as  judges  in  various  counties.  The  courts  were  continued  by  the 
constitution  of  1821.     The  judges  held  office  for  a  j)eriod  of  five  years. 

An  interesting  history  of  the  Court  of  Common  Pleas  for  the  City 
and  County  of  New  York,  and  its  development  from  the  Mayor's  Court 
of  the  City  of  New  York,  may  be  found  in  the  preface  to  the  first  vol- 
ume of  E.  D.  Smith's  Reports.  From  this  account  it  appears  that  the 
mayor  usually  presided  in  the  court,  but  from  the  time  of  Mayor 
DeWitt  Clinton  in  18()o  down  to  1821,  the  recorder  sat  as  presiding 
judge  of  the  court.  An  act  was  passed  in  1821,  changing  the  name 
from  that  of  the  Mayor's  Court  to  that  of  the  Court  of  Common  Pleas 
of  the  City  and  County  of  New  Y'ork,  and  creating  a  first  judge  who 


118 


HISTOKY  OF  THE  BENCH  AND  BAR  OF  NEW  YORK 


held  his  office  during  good  behavior,  or  until  he  reached  the  age  of 
sixty  years.  The  second  constitution,  however,  changed  the  tenure  of 
office  to  five  years,  and  gave  the  governor  the  power  of  appointment. 
John  T.  Irving  was  appointed  first  judge.  Among  those  who  were 
judges  of  the  court  prior  to  1846  were  Daniel  P.  Ingraham,  who  after- 
ward became  a  justice  of  the  Supreme  Court,  and  Charles  P.  Daly, 
who  to-day,  after  a  service  of  nearly  forty  years  on  the  bench,  is  still 
vigorously  practicing  law. 

The  Superior  Court  of  the  city  of  New  York  was  established 
under  an  act  passed  March  31,  1828.  It  had  the  same  jurisdiction  as 
the  Supreme  Court  in  all  civil  causes.  Its  creation  was  brought  about 
by  the  fact  that  it  was  impossible  to  reach  a  trial  in  the  Supreme 
Court  in  less  than  twelve  or  fifteen  months  after  the  return  of  the 
process.  The  first  chief-justice  of  the  court  was  Samuel  Jones,  who 
resigned  the  office  of  chancellor  to  accept  the  office  of  chief -justice  of 
the  Superior  Court.  Josiah  Ogden  Hofi"man  and  Thomas  J.  Oakley 
were  the  other  two  judges.  The  chief-justice  and  the  justices  were 
appointed  by  the  governor  with  the  consent  of  the  senate,  and  held 
office  for  a  term  of  five  years. 

Justices  of  the  peace  existed  prior  to  the  Kevolution,  and  were 
continued  after  it  by  various  statutes  passed  at  different  times.  They 
were  the  courts  nearest  the  people. 

Chapter  44  of  the  third  session,  passed  February  26,  1780,  empow- 

ered  justices  of  the 
peace,  mayors,  recorders, 
and  aldermen  to  try 
cases  to  the  value  of  one 
hundred  pounds  and 
under.  It  enacts  that 
all  causes,  actions,  and 
cases  of  debt,  slander, 
trespass,  replevin,  or  for  damages,  where  the  amount  demanded  did 
not  exceed  the  sum  of  £100,  shall  be  heard  before  one  of  the  justices 
of  the  peace  of  any  of  the  counties,  or  the  mayor  or  recorder  or  alder- 
men of  the  Cities  of  New  York,  Albany,  and  the  borough  of  West- 
chester, respectively. 

The  defendant  was  required  to  appear  forthwith,  when  the  process 
was  by  warrant,  and  when  by  summons  not  less  than  six  days  nor  more 
than  twelve  days  were  given  for  his  appearance.  The  judgment  was 
to  be  given  within  four  days  after  the  trial.  If  the  magistrate  who 
issued  the  warrant  was  absent,  the  defendant  was  carried  before  any 
other  magistrate  of  the  same  city,  town,  borough,  manor,  precinct,  or 
district. 

'  Uuion  College  realized  $284,000  by  lotteries,  and  the     "  deemed  not  only  respectable  but  lep;itimate."     Legis- 
College  of    Physicians  and  Surgeons  $63,000.      Such     lation  after  1820  brought  lotteries  into  disfavor, 
schemes  were  common  between  1799  and   18~0,   and 


LOTTEKY    FOR   UNION 


iiisioijY  or   riiK  liKNcii   AM)  HAU  oi'    m:\v  vokk  I  I'J 

Tli(>  ])n)C('ssa^':iinsl  all  rrcclioldcrs  aii<l  a^'ainsl  all  inliahilaiits  liav- 
iii<;  families  was  by  sinunion.s  only,  and  wa.s  served  on  the  person  of 
tile  defeiidanl,  or  a  copy  was  Mt  af  his  or  her  h()us(>  oi-  ])lae<'  of  abode, 
in  the  presence  of  some  of  tlio  family  of  snitable  a^e  and  discietion 
(who  should  be  informed  of  the  contents  tiuu-eof),  at  least  six  days  Ix'- 
fore  tlie  time  of  appearance  mentioned  in  the  summons.  Tli«?  constable 
or  officer  who  served  the  summons  was  required  to  endorse  ui)on  it  *he 
manner  in  which  lie  executed  tlie  same.  On  non-appearance  and  no 
sufllicient  reason  assi<;ned,  the  conrt  proceeded  to  trial  if  the  defendant 
had  been  personally  summoned,  but  if  the  summons  was  left  at  his 
house,  a  warrant  issued  in  case  of  non-appearance. 

The  case  could  be  tried  without  appearance  if  the  parties  agreed 
to  it.  On  an  affidavit  showing  that  the  i)laintilF  was  in  danger  of  los- 
ing his  demand  if  a  summons  issued,  a  warrant  issued  tliougli  the  party 
was  a  freeholder.  If  the  defendant  gave  security  the  court  might  ad- 
journ the  trial.  A  nou  resident  jjlaintilf  of  the  district,  upon  giving 
security,  might  have  a  warrant  returnable  immediately.  Either  party 
could  demand  a  jury  of  six  freeholders  or  freemen  to  try  the  case. 
The  juror's  oath  was  in  the  following  form  :  "  You  shall  well  and  truly 
try  this  matter  in  ditrerence  between  A  B,  j)laintiflf,  and  C  D,  defend- 
ant, and  a  true  verdict  give  according  to  the  evidence,  so  help  you 
God."  The  witness's  oath  was  as  follows :  "  The  evidence  which  you 
shall  give  in  this  matter  in  difference  between  A  B,  plaintiff,  and  C  D, 
defendant,  shall  be  the  truth,  the  whole  truth,  and  nothing  but  the 
truth,  so  help  you  (fod." 

After  hearing  the  proofs  and  allegations  the  jury  were  kept  together 
in  some  convenient  place  until  they  had  agreed  upon  a  verdict.  When 
they  had  agreed  they  delivered  it  into  court,  which  gave  judgment 
thereupon.  No  oath  of  the  parties  or  ex  parte  affidavit  was  admitted 
in  evidence  unless  the  parties  consented  thereto.  Every  person  sum- 
moned and  drawn  as  a  juror  or  subpoenaed  as  a  witness,  who  did  not 
appear,  or  appearing  refused  to  serve,  or  give  any  evidence  in  such 
action,  forfeited  such  fine  or  fines,  not  exceeding  the  sum  of  forty 
pounds  nor  less  than  ten  pounds,  in  the  discretion  of  the  court.  These 
fines  were  applied  to  the  use  of  the  poor  of  the  place  where  levied. 

If  the  plaintiff  in  any  such  action  was  non-suited,  or  discontinued, 
or  withdrew  his  action  without  the  consent  of  the  defendant,  judgment 
was  given  against  the  plaintiff  for  the  costs  accrued,  and  if  he  ap- 
peared to  be  indebted  to  the  defendant,  judgment  was  given  against 
the  plaintiif  for  the  amount  of  his  debt  or  demand,  and  costs. 

Execution  in  case  of  judgment  issued  to  the  constable  to  levy  on  the 
debtor's  goods,  and  for  want  thereof  to  take  the  debtor's  body.  No 
execution  could  issue  against  a  freeholder  in  less  than  thirty  days  after 
judgment,  unless  on  proof  of  danger  of  losing  the  debt. 

It  w^as  also  provided  by  section  8  that  if  any  plaintiff  should  com- 
mence or  prosecute  any  of  the  actions  mentioned  in  the  act,  in  any 


120  HISTORY   OF  THP:   bench   and   bar  or   NEW   YORK 

other  manner  than  as  directed  by  the  act,  and  should  obtain  a  judg. 
ment  thereon,  which  without  costs  should  not  amount  to  more  than  £100, 
not  having  caused  an  oath  or  affirmation  to  be  made  before  obtaining 
the  writ  and  filing  the  same  in  the  clerk's  ofiice,  that  the  person  mak- 
ing the  oath  or  affirmation  did  truly  believe  the  debt  due  or  damages 
sustained  exceeded  £100,  should  not  recover  any  costs  in  such  action. 

This  provision  did  not  extend  to  suits  in  the  name  of  the  people, 
or  where  titles  to  land  came  in  question,  or  actions  for  slander.  It  also 
provided  that  the  act  should  extend  to  matters  of  account  where  the 
sum  total  of  the  account  exceeded  the  sum  of  £400. 

The  act  also  provided  that  no  justice  of  the  peace,  being  a  tavern- 
keeper,  should  try  any  action  in  his  own  house. 

In  actions  of  trespass  on  plea  of  title  the  defendant  was  required  to 
enter  into  a  recognizance,  and  to  prosecute  and  make  good  his  title  in 
manner  as  directed  by  a  law  of  the  Colony  of  New  York  entitled  "  An 
act  for  preventing  trespass,  passed  May  6th,  1699,"  otherwise  the  mag- 
istrate was  directed  to  hear  and  determine  the  cause  as  if  no  such  plea 
had  been  made. 

The  cost  for  a  summons  was  sixteen  shillings  ;  a  warrant,  twenty 
shillings ;  a  judgment,  twenty  shillings ;  administering  every  oath  or 
aflBrmation,  ten  shillings ;  execution,  thirty  shillings ;  subpoena  for 
each  witness,  ten  shillings ;  venire  facias  to  summon  a  jury,  twenty 
shillings  ;  swearing  a  jury,  thirty  shillings  ;  witness  attending  on  sum- 
mons or  otherwise,  forty  shillings  per  day,  and  so  in  proportion  for  a 
longer  time  ;  constable  or  other  proper  officer  for  serving  summons, 
subpoena,  or  other  execution,  for  each  mile  travelled  or  under,  twenty 
shillings,  and  for  every  extra  mile  ten  shillings  ;  serving  every  execu- 
tion for  every  pound,  one  shilling  ;  and  summoning  every  jury,  sixty 
shillings.  Jurors  received  twenty  shillings  per  man  for  each  case  tried, 
and  when  attending  and  not  serving  ten  shillings  per  man. 

The  costs  seem  large  to  us,  but  there  was  a  provision  in  the  act 
that  the  costs  should  not  exceed  in  any  one  case  the  sum  of  £40. 

No  certiorari  or  writ  of  error  could  be  issued  unless  an  affidavit 
showing  reasonable  cause  was  presented  to  the  justice  within  one  month 
after  judgment.  A  copy  of  such  affidavit  w^as  given  to  the  adverse 
party  when  required.  Upon  the  affirmance  or  reversal  of  the  judgment 
the  prevailing  party  was  awarded  costs.  The  Supreme  Court  was  di- 
rected to  order  the  attorney-general  to  prosecute  magistrates  guilty  of 
unjust  practices.     This  act  was  to  remain  in  force  until  March,  1781. 

Chapter  9  of  the  Laws  of  1780,  which  was  passed  at  the  fourth 
session,  reduced  the  jurisdiction  of  the  justices  of  the  peace  and  the 
other  officers  mentioned  in  chapter  44,  above  referred  to,  to  the  cog- 
nizance of  cases  to  the  value  of  £10  only.  The  fees  were  reduced 
to  one-twelfth  part  of  their  nominal  value  as  expressed  in  said  act, 
and  it  was  further  ordained  that  upon  all  executions  to  be  issued 
in  consequence  of  judgment,s  in  any  court,  in  pursuance  of  said  act 


■nil-;  iti:.N( 


\-2\ 


nflcr  tli(>  jiassM^^c  I  hereof,  tiionev  should  l>e  received  ;i(  ihr  follow  iii<r 
and  no  otlier  rates  :  Silver  at  the  rate  of  ei^hl  shillings  for  a  Spanish 
milled  dollar,  and  gold  and  otiier  coins  in  the  like  pioportion  at  the 
I'ates  they  nsually  i)ass  ;  new  bills  einittiHl  npon  tlui  ci-edit  of  this 
state  pnrsuant  to  tlie  act  of  congress  of  tlie  18th  of  Maich  preceding  at 
their  respective  nominal  value,  and  every  otlier  si)eci(»s  of  paper  (!iir- 
rency  emitt(>d  by  tlie  antliority  of  congress,  or  of  the  late  Colony  of 
New  York,  or  this  state,  at  one-fortieth  part  of  the  nominal  value 
thereof,  or  at  the  rate  of  two  pence  and  two-fifths  of  a  pence  for  each 
dollar,  or  eight  shillings  expressed  on  the  face  of  each  bill. 

The  chief  law  ollicer  of  the  state  is  the  attorney-general.  Egbeit 
Benson  was  the  lirst  one  appointed  under  the  constitution  of  1777 
which  recognized  the  office  as  then  existing.  It  was  the  duty  of  the 
attorney -general,  among  otlier  things,  to  prosecute  all  criminals.  The 
state  grew  so  fast,  however,  after  the  end  of  the  war,  that  the  attoraey- 
general  was  not  able  to  conduct  all  of  the  criminal  prosecution,  and 
the  office  of  assistaut-attorney- 
general  was  created  in  order 
to  relieve  him.  The  state  was 
divided  into  districts,  and  an 
assistant-attorney-general  was 
appointed  in  each  district,  and 
was  directed  to  conduct  the 
prosecution  for  all  crimes 
cognizable  by  the  Courts  of 
Oyer  and   Terminer,  jail    de- 

"  1        O  •  BUIDEWKl.I.,    <ITY    IIAI.L    I'AUK. 

livery,  and   General   Sessions 

of  the  Peace.  The  attorney-general  was  appointed  by  the  Council  of 
Appointment  under  the  first  constitution,  but  under  the  second  he 
was  appointed  by  the  senate  and  assembly. 

Some  of  the  most  eminent  men  in  the  state  have  held  the  office. 
Benson  was  succeeded  by  Richard  Varick,  and  Richard  Varick  by 
Aaron  Burr.  Josiah  Ogden  Hoffman  w^as  attorney-general  in  1795, 
and  Ambrose  Spencer,  afterward  chief -justice  of  the  state,  in  1802. 
Martin  Van  Buren,  Thomas  J.  Oakley,  Greene  C.  Bronson,  Samuel 
Beardsley,  and  John  Van  Buren  were  also  attorney-generals  prior  to 
the  constitution  of  1846. 

By  a  law  passed  in  April,  1818,  each  county  became  entited  to  a 
district-attorney.  The  second  constitution  authorized  the  Court  of 
General  Sessions  in  each  county  to  api)oint  district-attorneys. 

Sheriffs  were  appointed  under  the  first  con.stitution  by  the  Council 
of  Appointment,  and  no  person  could  hold  the  position  for  a  longer 
period  than  four  years,  and  could  not  hold  any  other  office  while  he 
was  sheriff.  Under  the  constitution  of  1821  sheriffs  were  elected  for  a 
term  of  three  years. 

Many  innovations   and    changes    in    the    common  ..and    statute 


122 


HISTOKY  OF  THE  BENCH  AND  BAR  OF  NEW  YOEK 


law  of  Great  Britain  were  made  by  the  early  legislatures  of  the 
state. 

Trials  by  battle  were  abolished  by  chapter  7  of  the  ninth  session, 
passed  February  6,  1786.  The  preamble  to  this  act  recites  that 
"Whereas,  formerly  trials  upon  writs  of  right  were  by  battle  or  the 
Grand  Assize  ;  and  whereas,  the  barbarious  custom  hath  deservedly 
fallen  into  disuse  but  hath  never  been  abrogated  by  law  ;  and  whereas, 
by  the  institution  of  the  trial  by  the  Grand  Assize,  four  knights  are  to 
be  summoned  to  elect  the  recognitors  ;  and  whereas,  there  is  nor  can 
not  by  law  be  any  such  order  of  men  in  this  state."  It  is  worthy  of 
notice  in  this  connection  that  trial  by  wager  of  battle  Avas  not  abolished 
in  England  until  after  the  trial  of  the  celebrated  case  of  Ashford 
against  Thornton,  1  Barnwell  and  Adolphus  405,  which  was  decided 
in  1818,  which  case  called  the  attention  of  Parliament  to  the  fact  that 
this  relic  of  another  age  was  still  part  of  the  common  law  of  England, 
and  the  next  year  it  was  abolished. 

Chapter  19  of  the  first  session  abolished  the  punishment  of  the 
peine  forte  et  dure.  Chapter  69  of  the  tenth  session,  passed  March 
30,  1787,  is  the  first  act  relating  to  actions  of  divorce  passed  in  this 
state.  Its  preamble  recites  that  the  laws  re- 
specting adultery  are  very  defective,  and  that 
applications  having  in  consequence  been  made 
to  the  legislature  praying  their  interposition, 
it  is  thought  more  advisable  for  the  legislature 
to  make  some  general  provisions  in  such  cases 
than  to  ofl'er  relief  to  individuals  upon  their 
partial  representations  without  a  just  and 
constitutional  trial  of  the  facts.  It  related 
only  to  absolute  divorces,  which  were  allowed 
for  adultery  only,  and  provided  that  it  should 
not  be  lawful  for  a  party  convicted  of  adultery 
to  remarry  again  until  the  other  jiarty  was 
actually  dead.  It  gave  the  Court  of  Chancery 
jurisdiction  of  the  cause.  It  was  immediately 
made  use  of,  for  I  find  that  within  one  year 
four  actions  of  divorce  were  pending  in  the  Court  of  Chancery. 
That  court,  however,  appears  to  have  had  jurisdiction  in  certain 
kinds  of  actions  for  divorce,  for  a  decree  was  entered  in  the  case 
of  Elizabeth  Pugsley  against  Israel  Pugsley  on  the  2d  of  April, 
1772,  which  decree  provided  that  the  defendant  should  pay  to 
Lewis  Morris,  the  next  friend  of  the  complainant,  for  her  use,  the 
sum  of  £20  current  money  of  the  province  yearly  during  the  joint 
lives  of  the  parties  to  the  cause,  or  until  they  should  agree  to  live 
together  again,  and  also  that  he  pay  the  costs  of  the  action.  This 
same  Israel  Pugsley  was  again  before  the  Court  of  Chancery  on  the 
22d  day  of  May,  1793,  when  he  was,  on  the  petition  of  his  wife, 
Elizabeth  Pugsley,  adjudicated  a  lunatic. 


CONSTITUTIONAL   AND    RKLATED   ASPECTS,  FROM 
1801    TO   THE   CONSTITUTION    OF    1S94.' 


NV  outline  of  the  constitutional  history  of  New  York  in  the 
nineteenth  centurj'  involves  primarily  the  consideration  of 
several  great  public  movements,  culminating  in  the  constitu- 
tional conventions  of  1821  and  1840.  Each  of  the  constitu- 
tions presented  by  these  several  conventions  led  to  very  radical 
changes  in  the  substantive  law  or  procedure  of  the  State.  The  consti- 
tution of  1821  was  followed  by  a  notable  revision  of  the  fundamental 
law  of  New  York,  which  exercised  much  influence  also  on  the  laws  of 
other  States  ;  while  the  constitution  of  184G  was  followed  by  the  over- 
throw of  the  ancient  judicial  establishment  of  New  York,  and  by  drastic 
reforms  of  the  inherited  and  antiquated  procedure  in  use  for  several 
centuries  in  the  courts  of  justice  of  New  York.  Both  constitutions 
were  in  the  direction  of  more  liberal  institutions,  and  were  intended  to 
confer  upon  the  people  of  the  State  greater  political  powers  and  privi- 
leges than  had  ever  before  been  granted  to  them. 
The  constitution  of  1777 '  had  a  variety  of  defects  ;  two  of  these  led 


>  In  the  original  scheme  of  this  wurk  it  was  intended 
that  the  preeednig  historical  articles  should  be  followed 
by  a  third  on  similar  lines,  to  be  prepared  by  the  Hon- 
orable Austin  Abbott.  Mr.  Abbott's  death  prevented 
the  carrying  out  of  that  plan.  This  article,  by  Robert 
Ludlow  Fowler,  Esq.,  is  reproduced  from  Vol.  III.  of 
the  "  Memorial  History  of  New  York."  Editor. 

'  The  first  constitution  of  the  State  of  New  York  was 
framed  pursuant  to  a  resolution  of  the  continental  con- 
gress, May  10,  1T76  recommending  that  those  colonies 
which  were  without  a  sufficient  form  of  government 
should  adopt  some  suitable  organization.  A  "Conven- 
tion of  the  Representatives  of  the  State  of  New  York  " 
accordingly  assembled  at  White  Plains,  July  9,  ITTtJ.  It 
appointed  a  committee  to  take  into  consideration  a  plan 
for  instituting  and  framing  a  Stite  government.  The 
resulting  constitution— of  which  John  Jay  is  regarded  as 
the  principal  author — was  adopted  by  the  couvention' 
then  sitting  at  Kingston,  April  20,  1T77.  This  instru- 
ment became  the  supreme  law  of  the  State  without  any 
further  formality.  It  was  not  submitted  to  the  vote  of 
the  people  at  large.  Although  it  was  strictly  a  product  of 
the  Revolution,  to  meet  the  changed  circumstances 
brought  about  by  that  great  event,  it  was  remarkably 
conservative  in  its  general  provisions.  While  the  first 
section  declared  that  "No  authority  shall,  on  any  pre- 
tense whatever,  be  exercised  over  the  people  or  members 
of  this  State,  but  such  as  shall  be  derived  from  and 
granted  by  them,"  the  constitution  was  far  from  in- 


stituting violent"  democratic  innovations.  The  suffrage 
was  restricted  to  freeholders  in  the  province  and  to  free- 
holders of  New  York  City  and  Albany.  As  an  illustra- 
tion of  the  workings  of  this  restriction,  in  the  year  1T90 
only  1,.303  of  the  1.3,330  male  residents  in  New  York  City 
possessed  sufficient  property  to  be  entitled  to  vote  for 
State  senators.  In  order  to  limit  the  legislative  powers 
of  the  people's  representatives  a  "council  of  revision" 
was  constituted,  consisting  of  the  governor,  chancellor, 
and  Supreme  Court  judges,  or  any  two  of  them  acting 
with  the  governor,  and  a  vote  of  two-thirds  of  both 
houses  was  required  to  override  the  council's  veto.  The 
oflice  of  governor  retained  much  of  its  ari.-tocratic  char- 
acter. It  was  required  that  the  governor  should  l)ea 
freeholder,  and  only  citizens  pos>essiiig  freeholds  of  the 
value  of  £1110  were  authorized  to  vote  for  governor.  All 
ofllcers  except  the  governor  and  lieutenant-governor 
were  made  appointive,  and  were  to  be  selected  by  a 
council  of  appointment  composed  of  the  governor  and  a 
council  of  senators  chosen  by  the  assembly.  The  only 
change  made  in  the  organization  of  the  judiciary  was 
the  creation  of  one  new  tribunal,  the  Court  for  tie  Trial 
of  Impeachments  and  the  Correction  of  Errors.  Both 
the  Supreme  Court  and  the  Court  of  Chancery  were  left 
entirely  undisturbed,  notwithstanding  that  they  owed 
their  origin  to  ordinances  of  the  roy;d  governors,  issued 
in  opposition  to  the  wi^he8  of  the  popular  assembly. 
But  ihe  legislature  was  forbidden  to  institute  any  new 
ci.iirts  "but  such  as  shall   proceed  according  to  the 


1:3 


124  HISTORY    OF   THE   BENCH   AND   BAR   OF   NEW   YORK 

to  the  constitutional  convention  elected  in  the  year  1801.  The  consti- 
tution of  1777  had  omitted  all  directions  for  its  amendment ;  but  on 
the  theory  that  all  political  authority  emanated  from  the  people,  the 
legislature  in  1801,  by  a  referendum  act,  recommended  a  convention  to 
consider  two  changes.  One  of  these  was  made  necessary  by  the  em- 
barrassing ratio  in  which  the  senate  and  assembly  were  augmenting 
with  the  population,  and  the  other  by  a  notorious  conflict  which  had 
arisen  between  the  governor  and  the  other  members  of  the  council  of 
appointment  concerning  the  governor's  exclusive  right  of  nominating 
to  certain  public  offices  under  the  provisions  of  the  constitution  of 
1777. 

The  delegates  accordingly  elected  by  the  suffragists  met  at  Albany, 
October  IB,  1801,  and  chose  Aaron  Burr,  a  delegate  for  Orange  County, 
chairman.  The  ultimate  number  of  members  of  assembly  was  for 
the  future  restricted  to  one  hundred  and  fifty,  and  the  number  of 
senators  to  thirty-two.  The  right  to  nominate  to  office  under  the 
23d  section  of  the  constitution  of  1777  was  declared  to  be  vested 
concurrently  in  the  governor  and  in  each  of  the  members  of  the 
council  of  appointment.  The  change  made  in  the  appointing  power 
by  this  construction  of  the  constitution  deprived  the  office  of  gov- 
ernor of  the  State  of  much  of  its  existing  influence,  and  led  to  a  per- 
petual struggle  of  the  politicians  for  the  control  of  the  council  of 
appointment  It  introduced  no  real  reform,  and  led  only  to  the  con- 
viction that  the  api)ointing  power  was  more  safely  lodged  in  the 
hands  of  the  executive  than  in  the  hands  of  a  counsel  or  committee. 

In  reading  the  accepted  version  of  the  political  history  of  the  State 
of  'New  York,  one  might  infer  that  the  entire  period  between  1777 
and  1821,  the  date  of  the  second  constitution,  was  devoted  to  a  con- 
stant and  petty  struggle  for  political  place,  and  that  no  lofty  public 
measures  received  or  demanded  the  attention  of  the  leaders  of  the 
political  parties  of  the  State.  Yet  such  an  inference  is  not  wholly 
verifiable.  During  this  entire  period  there  was  great  popular  dissatis- 
faction with  those  provisions  of  the  State  constitution  of  1777  which 
related  to  the  property  qualifications  for  electors,  and  with  other  pro- 
visions which  vested  such  transcendent  political  powers  in  the  judges 
of  the  great  courts  of  record.  The  popular  dissatisfaction  for  some 
time  took  the  usual  form  of  protests  in  the  newspapers  of  the  day, 

course  of  the  common  law."    A  trial  of  secret  voting  character  of  the  constitntiou  of  17T7,  "  the  new  form  of 

by  ballot  wae  provided  for,  but  with  the  proviso  that  governmeni  of  New  York  contained  several  features  new 

if  it  should  prove  a  failure  the  old  viva  voce  method  to  the  history  of  political  societies-absolute  religious 

should  bo  resumed.    The  law  of  the  State  was  estab-  toleration  and  the  declaration,  rather  than  the  realiza- 

lishedby  a  declaration  that  it  should  consist  of  "such  tion,  of  a  complete  popular  supremacy,  absolutely  un- 

parts  of  the  common  law  of  England  and  of  the  statute  alloyed  with  difEerences  in  status,  for  no  mention  was 

law  of  England  and  Great  Uritain,  and  of  the  acts  of  the  made  of  African  slavery  in  the  constitution,  and  its  total 

Legislature  of  the  Colony  of  New  York,  as  together  did  abolition  was  evidently  contemplated  by  the  founders  of 

form  the  law  of  the  said  colony  on  the  19th  day  April,  the  new  State."    (See  Mr.  Fowler's  article,  "  Constitu- 

1775,"  subject  to  such  alterations  and  provisions  as  the  tional  and  Legal  History  of  New  York  in  the  Eighteenth 

legislature  of  the  State  shoujd  make  concerning  tlie  same.  Century,"  '•Memorial  History  of  New  York,"  Vo).  IL, 

Notwithstanding,  however,  the  generally  conservative  chapter  xiv.  Euitok. 


IIISIOKY    Ol'    nil';    liKNCII    .'.M»    I!Ai:    (tl'    NKW     V(ii:K  1 -'0 

Hill  ill  August.  IS'JO,  'l':iniin;iiiy  Hull.  :is  I  he  orniini/cil  rcpicsciiliitivc; 
of  tlio  (lissalislicd  cltMucnt  of  the  population,  initiated  a  niovcinent 
lor  a  convention  to  ain«'n(l  the  State  constitution.  The  sub.se(jucnt 
lei^islativt^  bill  i)rovi(lin<^  for  tlie  convention  i)romptly  met  with  the 
disapprobation  of  a  majority  of  the  council  of  revision,  wiio  vetoed  it. 
Chancellor  Kent  \vritin<i;  the  opinion  of  the  council  with  all  the  con- 
servatism of  a  trained  lawyer.  No  veto  in  the  history  of  the  State 
has  met  with  greater  censure  than  this  action  of  the  council  of 
revision.  The  council  was  openly  accused  of  wi.shing  to  defeat  the 
will  of  the  i)eople,  and  of  conspiring  to  retain  the  State  in  the  hands 
of  the  lawyers  and  landholders  who,  from  its  foundation,  had  cai-e- 
fully  guided  its  i)olitical  fortunes.  The  report  of  ^Michael  rishoeffer, 
chairman  of  the  select  committee  of  the  assembly,  combated  the  logic 
of  the  veto  with  great  vigor,  and  is  regarded  as  the  abler  State  pa])er 
of  the  two.'  A  bill  was  tinally  .so  drawn  in  March,  1821,  as  to  meet 
the  main  objection  of  the  veto  b\'  the  council  of  revision.  It  submit- 
ted the  question  of  holding  a  constitutional  convention  to  the  decision 
of  the  electors  of  the  State.  The  electors  having  decided  in  the 
affirmative  by  a  vote  of  109,346  to  34,901,  delegates  were  next  chosen, 
who  met  at  Albany  in  August,  1821.  Before  considering  the  changes 
accomplished  by  the  convention,  it  will  be  in  order  to  survey  the 
forms  to  wdnch  some  of  the  leading  institutions  had  then  attained. 

The  judicial  establishment  of  New  York  was  never  more  efficient 
than  in  the  first  tw^enty-one  years  of  the  present  century.  It  was  still 
substantially  the  proA'incial  establishment  erected  by  the  English,  and 
continued  by  virtue  of  the  recognition  accorded  to  it  in  the  first  State 
constitution,  adopted  in  1777.  Under  this  constitution  the  Suj^reme 
Court  of  Judicature,  as  originally  established  in  1691,  continued  on  its 
ancient  footing.  But  the  influence  of  the  court  increased  much  with 
the  growth  of  population  and  affairs,  and  this  Avas  followed  naturally 
by  the  publication  of  a  regular  series  of  printed  law  reports.  The 
elevation  of  James  Kent  to  the  Supreme  Court  bench  in  1798,  and  his 
interest  in  the  law  reports,  did  much  to  place  this  ancient  court  on  a 
more  influential  basis.  Under  the  judgeships  of  three  great  judges — 
Kent,  Thompson,  and  Ambrose  Spencer — the  court  was  very  excel- 
lently administered,  and  manv'  legal  principles  were  settled ;  while 
fluctuating  theories  gave  place  to  determinate  and  known  rules  of  law, 
reported  in  the  famous  series  of  leading  cases  by  Caiue  and  Johnson, 
the  official  Supreme  Court  reporters.  The  Supreme  Court  justices  still 
went  the  circuit  when  the  regular  terms  of  the  court  in  hanc  were  not 
in  session  in  Albany,  Utica,  or  New  York.  As  a  law  court  the  Supreme 
Court  of  New  York  may  have  been  surpassed  by  several  of  the  law 
courts  of  other  States,  whose  influence  on  American  law^  has  been,  no 
doubt,  more  profound.  But  it  was  otherwise  in  respect  of  the  Court 
of  Chancery. 

>  See  this  p-nper  in  Street's  "N.  Y.  Council  of  Revision,"  455. 


126  HISTORY    OF   THE   BENCH    AND    BAR   OF   NEW    YORK 

In  the  year  1814,  James  Keut  was  translated  from  the  chief-jus- 
ticeship of  the  Supreme  Court  to  the  Court  of  Chancery.  From  a 
common-law  judgeship  he  passed  to  the  "  throne  of  equity."  In  the 
same  year,  Johnson,  the  Supreme  Court  reporter,  was  directed  by  the 
legislature  to  report  the  decisions  of  the  chancellor.  With  this  event 
begins  the  most  brilliant  period  of  the  New  York  Court  of  Chancery. 
Livingston,  the  first  chancellor  under  the  State  government,  had 
been  an  able  judge,  a  great  diplomat,  and  a  sagacious  figure  in  politi- 
cal life,  but  his  judicial  work  is  not  known,  as  his  opinions  have  re- 
mained unpublished.  Only  his  legal  opinions  in  the  council  of 
revision,  and  a  few  rules  of  court,  as  yet  mark  his  term  of  office  as 
chancellor.  Of  Chancellor  Lansing's  administration  more  is  known, 
for  he  promulgated  seventy-four  chancery  rules,  or  standing  orders 
in  chancery,  which  are  called  by  jurists  the  equivalents  of  edicts  or 
direct  legislation,  and  are  recognized  as  powerful  factors  in  the  ad- 
ministration of  government.  Some  of  these  rules  were  an  improve- 
ment on  the  contemporary  English  equity  practice.  Chancellor 
Lansing's  career  also  labors  under  the  disadvantage  of  having  had 
no  reporter.  But  with  Lansing's  successor,  Chancellor  Kent,  it  is 
otherwise:  from  the  very  beginning  of  his  judicial  life  he  was  at- 
tended by  the  reporters,  and  the  precise  value  of  his  labors  to  the 
State  and  nation  is  approximately  ascertainable.  Chancellor  Kent 
had,  at  the  threshold  of  his  career,  perceived  that  to  an  American 
lawyer  of  his  day  two  great  and  living  problems  w^ere  presented  for 
solution :  the  relations  of  the  common  law  of  the  older  country  to  the 
new  republic,  and  the  relations  of  the  judicature  branch  of  government 
to  the  legislative  and  executive  branches  in  a  composite  or  federal 
state.  In  1794,  as  professor  of  law  in  Columbia  College,  he  had  ad- 
dressed himself  tentatively  to  the  latter  proposition.  In  1795  he  pub- 
lished a  small  volume  of  dissertations  preliminary  to  a  proposed 
course  of  lectures  on  the  common  law.  But  the  lectures  failed  to  at- 
tract hearers,  and  were  discontinued.  At  a  long  subsequent  period, 
and  in  his  retirement,  he  gave  to  the  public  his  "  Commentaries  on 
American  Law,"  which  throughout  the  United  States  became  a  recog- 
nized institutional  treatise,  as  celebrated  in  its  way  as  Blackstone's 
"Commentaries  on  the  Laws  of  England"  had  been  in  its  way.  In 
the  New  York  Court  of  Chancery,  Kent  found  an  instrument  which 
he  at  least  knew  how  to  use.  He  was  profoundly  impressed  with  the 
traditions  and  dignity  of  the  ancient  prototype  of  his  court,  the  High 
Court  of  Chancery  in  England.  No  one  could  be  more  mindful  of  the 
fact  that  in  England  the  chancellors  had  exercised  legislative  func- 
tions similar  to  those  which  the  Roman  pretors  discharged  in  the 
development  of  the  civil  law.  But  Kent  had  no  disposition  to  inno- 
vate.    His  was  an  eminently  practical  mind,  and  in  the  year  follow- 


msi(»i;v  (»K   iiiK  m;\<ii    \M)  iiau  <>|.    mw    \,,\:k  \:i7 

iii^'  Ills  clcvalioii  to  th."  (•h.-iiK-cry  lie  slalt-d  that  li.-  would  follow  llio 
Eiij:;lisli  cliaiiccllors'  concept  ions  of  ('(juify,  und  wonld  undf-rtakc  no 
inni)vations,  whicli  lie  rc<j;ai(kHl  us  very  danj^iTous.'  In  thus  limit- 
ing his  extended  judicial  powers,  he,  perhaps,  <i(>nied  liinis(df  un 
oi>port unity  of  expressing  his  own  concei)tions  of  equity,  and  of 
taking  an  original  i)lace  in  the  very  front  rank  of  English-six-aking 
chancellors,  lie  was  content  to  servo  as  an  expounder  and  com- 
mentator of  Anglo-American  law  :  thus  he  contributiMl  jitth^  tiiat 
was  original  to  those  fundamental  eanons  of  English  (Hjuity  which 
comprise  the  perpetual  edict  of  that  system,  and  whicli  were  prac- 
tically completed  in  England  by  his  contemporary,  Loi-d  Eldon.  In 
this  respect  Kent's  i)resent  influence  differs  from  the  influence,  for 
example,  of  such  an  American  jurist  as  Marshall,  who  possessed  an 
original  and  creative^  intellect  of  the  highest  order,  and  whose  judg- 
ments must  always  be  sensible  on  this  continent  in  the  region  of 
])olitical  law  and  })hilosopliy.  In  thus  treading  in  the  footsteps  of 
the  English  chancellors,  Kent  did  not,  as  we  shall  see,  escape  the  re- 
sponsibilities which  the  anomalies  incident  in  New  York  to  his  office 
made  inevitable;  for  the  recipient  of  such  great  political  powers  could 
not  hope  to  elude  criticism  under  a  republican  form  of  government. 
Nor  can  it  be  said  that  those  who,  in  the  convention  of  1821,  criticized 
the  abnormal  power  intrusted  to  a  chancellor  of  this  State,  were 
wholly  without  justification.  In  addition  to  exercising  the  law  pow- 
ers of  a  chancellor  under  the  former  English  system,  the  chancellor 
of  New  York,  by  virtue  of  his  office,  sat  in  the  court  of  last  resort,  and, 
though  he  could  not  vote,  might  argue  in  support  of  his  own  judg- 
ment below.  He  was  also  one  of  those  who  possessed  in  the  council 
of  revision  a  qualified  veto  on  all  legislation  under  the  first  constitu- 
tion. This  was  an  abnormal  and  tremendous  power  for  a  judge. 
These  powers,  which  it  is  proper  to  say  Kent  had  not  sought,  nor 
even  helped  to  confer,  he  exercised  without  fear,  in  the  old-fashioned 
federal  and  professional  manner,  very  exasperating  to  the  newer 
school  of  republican  lawyers,  who  would  not  defer  so  profoundly  to 
the  legal  system  of  England.  Thus,  toward  the  year  1821,  Kent,  in 
the  minds  of  his  opponents,  was  the  leading  representative  of  the 
hated  and  influential  survival  of  what  they  believed  ought  to  have 
been  purely  ante-revolutionary  traditions,  having  little  application  to 
the  conditions  of  Ameri(*an  life  under  the  republic.  His  opponents 
deprecated  the  chancery  conceptions  of  a  "throne  of  equity."  Indeed, 
the  whole  idea  of  a  chancellor,  they  said,  was  associated  with  a  king- 
ship: a  chancellor  without  a  king  was  almost  as  inconsistent  as  a 
king  without  a  chancellor.  The  entire  chancery  establishment  came 
in  for  condemnation  because  it  fostered  a  class  of  officials  and  prac- 

1 1  Johnson's  Chancery,  530. 


128  HISTORY    OF   THE   BENCH    AND   BAR   OF   NEW   YORK 

titioDers  whose  exclusiveness  was  distasteful  to  the  population  of  the 
newer  and  growing  parts  of  the  State.  Thus,  side  by  side  with  Chan- 
cellor Kent's  practical,  conservative,  and  just  administration  of  the 
Court  of  Chancery,  were  growing  up  the  seeds  of  discontent  in  the 
minds  of  the  more  independent  and  emancipated  political  thinkers. 
This  discontent  culminated  in  the  constitutional  convention  of  1821, 
when  Kent  had  been  only  seven  years  chancellor  of  New  York. 

In  addition  to  the  great  courts  mentioned,  there  were  in  the  year 
1821  the  Court  of  Errors  and  the  Court  of  Probates,  already  noticed. 
The  Court  of  Errors,  it  will  be  recalled,  consisted  of  the  senators,  the 
chancellor,  and  the  judges  of  the  Supreme  Court.^  In  1787  a  minis- 
terial part  of  the  jurisdiction  of  the  Court  of  Probates  had,  by  an  act 
of  the  legislature,  devolved  upon  certain  officers  termed  surrogates. 
The  Court  of  Admiralty  had  expired  when  the  admiralty  jurisdiction 
had  been  called  into  being  by  the  federal  constitution  of  the  general 
government.  The  minor  courts  of  the  State  remained  in  1821  sub- 
stantially as  before  the  Eevolution. 

Before  noticing  the  changes  wrought  by  the  new  constitution,  let 
us  glance  again  at  the  condition  of  the  State  of  New  York  about  the 
time  of  the  convention  of  1821.  In  1808  the  number  of  freeholders 
entitled  to  vote  for  senator  and  governor  was  36,500,  and  in  1820, 
despite  the  increase  in  population,  the  number  of  freeholders  qualified 
to  vote  for  the  great  officers  of  the  State  had  not  increased  in  a  like 
ratio  with  the  population.  This  was  felt  to  be  a  grievance  by  the 
people  at  large.  In  1820  the  major  part  of  the  inhabitants  were  still 
engaged  in  agriculture,  and  the  rural  districts  were  increasing  in 
population  at  a  greater  ratio  than  the  urban  communities.  In  1812, 
twelve  new  counties  had  been  carved  out  of  the  one  great  county 
theretofore  lying  west  of  Seneca  Lake.  In  1820  the  sixteen  counties  in 
the  State  of  the  year  1790  had  become  fifty-five  counties,  embracing 
five  incorporated  cities  and  six  hundred  and  sixty-two  boroughs 
or  towns.'  After  the  peace  with  England  in  1783  the  western  terri- 
tory, or  that  great  country  west  of  the  80th  meridian,  had  attracted 
large  numbers  of  settlers.  One  of  the  routes  to  the  Ohio  country 
from  New  England  was  through  central  New  York,  and  many  men 
of  New  England  birth  either  stopped  on  their  way  to  the  far  West, 
or  settled  in  New  York,  finding  certain  advantages  or  attractions 
in  the  then  wild  parts  of  this  State.  Thus,  central,  western,  and 
northern  New  York  soon  began  to  have  the  political  tone  of  New 
England.'  These  men  of  New  England  entertained  very  different 
conceptions  of  government  from  those  embodied  in  the  State  consti- 
tution of  1777  by  the  old  land-owning  and  lawyer  classes  of  the  prov- 

'  "  Memorial  Ilistory  of  New  York,"  Volume  U.  "  Spofford's  "  Gazetteer,"  p.  691. 

=  "  (iazetteer  of  Western  Continent  for  1810:  "  title,  "  New  York." 


m>i(>i;v  (II-   riiK  iti;.N(  ii   wit   it\i;  m    m w    ^(.l;K  {"J'.i 

iiicc  of  New  York.  '11ms  it  liappciird  tluit  tlir  rx|M.ii.'iils  of  th..  i,.-w 
parts  of  tho  State — men  of  tlio  old-fasliioiicd  IMiiilaii  iiaiiics — wt-rc, 
in  tlio  constitutional  convention  of  IHl'l,  as  a  rule,  found  in  the  pai-ty 
of  reform,  and  not  in  \\\o  raid<s  of  the  luoi-e  eonservatisc  an<l  nati\»! 
eloinent  of  the  State. 

As  late  as  1S20  the  more  populous  districts  of  the  State  existed  in  the 
two  oblongs  anciently  settled, — extending,  the  one  down  Long  Island 
and  the  other  up  the  Hudson  liiver, —  and  there  the  inhabitants  were 
mainly  of  th(>  old  provincial  type.  In  Kiugs,  Ulster,  Albany,  and  parts 
of  Orange  County  might  still  bo  heard  tho  Low  Dutch  of  tho  seven- 
toentli  century,  although,  from  tho  want  of  Dutch  schools  aud  tho 
pi-oponderanco  of  people  of  English  stock,  tho  uso  of  tho  language 
of  the  first  European  settlors  had  greatly  diminishod.  But  in  the  an- 
cient districts  Dutch  and  English  names  were  still  found  in  most 
families  curiously  combined,  denoting  that  the  social  condition  had 
followed  tho  political  transitions  of  the  province,  and  that  tho  race 
of  the  conqueror  had  blended  with  that  of  the  conquered.  Tho  pop- 
idation  in  these  districts  was  still  largely  native.  Franklin  pointed 
out  that  oven  at  tho  time  of  the  war  of  independence  tho  iidiabitants 
of  all  the  American  colonies  were  largely  natives,  and  descended  fi-oni 
those  who  had  emigrated  from  Europe  prior  to  the  year  1700.  The 
fact  that  tho  population  of  New  York  State  was  lai-goly  native  in  1820 
is  corroborated  by  tho  statistics  of  tho  city  of  Now  York  in  1820,  when, 
out  of  a  total  population  of  123,70(5,  but  5390  of  tho  inhabitants  of 
that  city  appear  to  be  classed  as  unnaturalized  foreigners.  Indeed,  in 
1820  the  population  of  the  whole  State  was  mainly  composed  of  na- 
tive Americans,  and,  as  stated,  tho  major  part  were  engaged  in  agri- 
cultural pursuits. 

Tho  great  city  which  now  stands  rather  for  Xorth  America  than  for 
the  State  of  New  York,  and  which  is  fast  outgrowing  its  traditions  as 
an  ancient  capital  of  an  ancient  province,  had  increased  from  80,000 
inhabitants  in  1808  to  123,70(5  in  1820.  From  the  year  1756  to  the  year 
1790  the  general  progress  of  the  city  in  population  and  resources  was 
much  like  that  of  other  American  cities.  But  after  1790  it  became 
evident  that  New  York  was,  for  a  long  time  at  least,  to  load  other 
American  cities.^  Yet  for  some  years  after  the  constitutional  con- 
vention of  1821  the  affairs  of  this  city  were  conducted  mainly  under 
the  royal  charter  known  as  the  Montgomerio  Charter  of  1730.'-  As 
late  as  1827  (ji-eneral  Dix  noticed  the  fact  that  in  New  York  city  "  the 
Dutch  families  b}^  which  the  first  settlement  was  formed  were  still 
represented  in  their  descendants,  who  constituted  a  considerable  pro- 
portion of  the  whole  number  of  inhabitants,"'  but  he  admitted  "  that 

'  Dix's  "  Resources  of  the  City  of  New  York  in  18i7."  '  "  Memorial  History,"  Volnme  II. 

' "  Kosources  of  the  City  of  New  York,"  \>.  3«. 


130 


HISTORY   OF   THE   BENCH   AND   BAR   OF   NEW   YORK 


the  descendants  of  the  English  families  who  established  themselves 
during  its  colonial  dependence  on  Great  Britain"  were  then  much 
more  numerous. 

Such,  then,  were  some  of  the  conditions  prevailing  in  New  York 
at  the  time  of  the  constitutional  convention  of  1821 — a  population 
composed  largely  of  native  Americans, 
whose  pursuits  were  in  the  main  agri- 
cultural. No  body  of  aliens  had  yet  be- 
come so  formidable  or  consolidated  as  to 
constitute  a  known  and  separate  political 
organization,  generaled  and  led  by  pro- 
fessional political  headmen  of  their  own 
race.  The  conditions  of  commerce  were 
still  largely  primitive  in  character:  the 
Erie  Canal  had  not  been  completed;  steam 
navigation  was  yet  in  its  infancy;  the 
telegraph  and  the  railroad  were  unknown ; 
while  postal  circuits  were  made  over  the 
common  turnpikes  and  waterways  of  the 
State.  Yet  the  material  conditions  of  life 
were  relatively  those  of  a  highly  civilized 
State,  and  not  very  dissimilar  to  the  conditions  in  the  civilized  States 
of  the  older  world.  New  York  had  already  been  settled  for  two  cen- 
turies. 

"When  the  constitutional  convention  met  at  Albany,  August  28, 1821, 
the  delegates  were  fairly  representative  of  both  the  reformers  and  the 
conservative  party  in  the  State.  The  older  counties  sent  their  most 
distinguished  lawyers  and  the  landholders  representing  their  tradi- 
tions. From  Albany  and  the  older  counties  came  Chancellor  Kent, 
the  Jays,  and  the  Livingstons ;  from  New  York  County  came,  among 
others,  Nathan  Sandford,  Ogden  Edwards,  Henry  Wheaton,  and  Jacob 
Eadcliff .  From  the  newer  counties  were  sent  such  men  as  Jarvis  Pike, 
Nathan  Carver,  Victory  Birdseye,  Micah  Brooks,  Jason  Fenton,  and 
General  Erastus  Root.  Among  the  other  notable  members  of  the 
convention  were  Daniel  D.  Tompkins  and  Martin  Van  Buren.  From 
the  fact  that  Daniel  D.  Tompkins,  "  the  favorite  farmer's  son,"  as  he 
was  then  called,  was  elected  chairman  of  the  convention,  it  was  soon 
evident  that  the  Democrats  were  in  the  majority,  and  that  the  new 
constitution  was  to  be  made  more  democratic  in  principle  than  the 


1  Andrew  Kirkpatrick  was  bom  February  17, 
1756,  and  gradviated  at  Princeton.  He  studied  law, 
was  admitted  to  the  bar  in  1785,  and  practised  suc- 
cessfully. In  1797  he  was  a  member  of  the  New 
Jersey  legislature,  soon  resigning  to  become  judge 
of  the  State  Supreme  Court.     In  1803  he  was  made 


chief  justice  of  the  State,  which  office  he  held 
for  twenty-one  years.  He  married  Jane,  eldest 
daughter  of  Colonel  John  Bayard,  and  died  in 
New  Brunswick,  N.  J.,  January  7,  1831.  (  Vide  a 
privately  printed  address  on  the  chief  justice,  by 
General  Wilson,  New- York,  1870.)  Editor. 


msKiKV   oKiiii';  iti:N<  II    am»   mai;  oi'    m w    \i>\iK  \'M 

old  (>n(>  hi.. I  iMvii.  'I'hr  .l.-l.iit.-s  in  \\w  rorivnti..,,  .sl„,\v  rh-nrW  thai 
the  pi-iiuacy  of  llic  old  Judi<'ial  cslahlisliiiH'iil,  with  its  ahiioniial  ixdil- 
ical  powor  and  the  (lualilicd  clcctoi-al  franchise  crcclcil  on  a  basis  of 
laiiih'd  interest,  in  eonfoi'inity  to  th(>  former  Anglican  institntions  of 
the  ])rovinco,  were  the  main  points  of  attack  by  the  i-eformers.  In- 
cidentally the  justices  of  the  Suprenu*  ('ourt,  and  even  the  distin- 
guished chancelloi-,  were  virtually  put  on  ti-ial  by  th(!  convention. 
They  were  made  the  manifest  victims  of  an  organization  which  had 
confused  the  coordinate  depai-tments  of  government,  and  their  ex- 
planations in  convention  were  generally  prefaced  by  apologetic  and 
painful  explanations  duo  to  their  unfortunate  position.  In  this  re- 
gard the  spectacle  of  the  convention  was  a  triumph  of  democracy 
over  the  upholders  of  ancient  institutions.  Sometimes  the  debates 
became  virulent.  The  chancellor  was  likened  to  "  the  Bohun  Upas  of 
Java,  that  destroyed  whatever  sought  for  shelter  or  protection  in  its 
shade."  Even  his  reporter,  Johnson,  with  his  "big  and  litth'"  books, 
was  ridiculed.  Chief  Justice  Spencer,  in  some  respects  the  ablest 
common-law  judge  in  the  State,  was  contemptuously  told  "that  he 
might  have  been  a  Holt  or  a  Mansfield  had  he  kept  from  the  political 
arena."  It  was  evident  that  the  people  were  impatient  with  the  veto 
power  vested  in  the  council  of  revision,  which,  it  will  be  remembered, 
consisted  of  the  governor,  the  judges  of  the  Supreme  Court,  and  the 
chancellor.  The  judiciary  had  thus  been  dragged  into  every  political 
measure  of  importance,  and  the  consequent  tori-ent  of  popular  de- 
nunciation had  much  diminished  their  usefulness.  Thus,  Kent  and 
Spencer,  whom  we  now  regard  as  the  high  priests  of  the  ancient  sys- 
tem of  law,  were  at  the  end  of  their  judicial  careers  made  the  victims 
of  the  Anglican  institutions  of  a  former  century,  of  which  they  were 
the  stoutest  upholders.  It  may  well  be  doubted  whether  the  chan- 
cellor and  the  judges  were  wise  in  attending  the  convention  as  dele- 
gates. They  knew  that  their  power  was  to  be  broken ;  they  were 
there  making  stately  defenses  of  their  past,  and  to  save  the  remnant 
of  former  institutions,  when  neither  needed  extenuation.  The  con- 
vention finally  decided  to  make  a  new  constitution,  as  the  old  was 
deemed  past  amending.  The  council  of  revision  was  abandoned,  and 
after  the  fullest  deliberation  a  limited  veto  power  was  transferred  to 
the  governor.  The  council  of  appointment,  which  then  appointed 
709  officers  in  the  city  of  New  York  alone,  next  shared  the  fate  of  the 
council  of  revision.  A  great  number  of  minor  offices  were  made 
elective.^  Justices  of  the  peace  were  to  be  appointed  by  the  boards 
of  supervisors  and  the  county  judges."  The  appointment  of  the 
higher  judicial  officers  was  vested  in  the  governor,  with  the  consent 

1  Constitution  of  1821.  Art.  IV. 
-  In  182C  an  amendment  made  the  justices  elective. 


132  HISTOKY    or   THE   BENCH   AND    BAR   OE   NEW    YOKK 

of  the  senate.'  The  appointment  of  secretary  of  state,  comptroller, 
treasurer,  attorney-general,"  sm-veyor-general,  and  commissary  was 
vested  in  the  senate  and  assembly  on  joint  ballot.  All  officers  hold- 
ing their  offices  during  good  behavior  might  be  removed  by  joint 
resolution  of  the  two  houses  of  the  legislature.  The  term  of  office  of 
governor  having  been  invested  with  some  part  of  the  former  powers 
of  the  several  councils  of  revision  and  appointment,  was  abridged 
from  three  to  two  years  in  order  to  insure  a  greater  responsibility  to 
the  electors. 

The  debates  in  the  convention  on  the  electoral  franchise  were 
spirited,  exhaustive,  and  really  instructive.  With  the  most  advanced 
thinkers  on  this  subject  stood  Peter  R.  Livingston  of  Duchess 
County.  He  allied  himself  to  the  tenant-farmers,  who  were  largely 
for  reform,  and  opposed  General  Van  Rensselaer  and  Chancellor  Kent, 
who  stood  openly  by  the  ancient  traditions  of  a  superior  landed 
interest,  and  who  were  at  least  for  the  survival  of  an  upper  legislative 
house  which  should  represent  the  more  exclnsive  body  of  freeholders. 
All  recognized  that  some  extension  of  the  franchise  was  inevitable, 
and  the  more  conservative  fought  to  retain  the  provisions  of  the  old 
constitution  which  divided  the  electors  into  two  classes  according  to 
property  interest.  The  debates  afford  curious  evidences  of  the  sur- 
vival of  ancient  institutions,  and  the  frequent  use  of  such  words  as 
" yeomanry  " and  "landed  interest"  denotes  that  the  legacies  and  tra- 
ditions of  a  former  century  were  hard  to  extinguish  even  under  the 
republic.  General  Van  Rensselaer  placed  his  objections  to  universal 
suffrage  on  the  ground  that  the  influence  of  the  city  of  New  York 
would  be  augmented  at  the  expense  of  the  ancient  and  long-settled 
rural  districts.  Other  opponents  placed  them  on  the  more  subtle 
ground  of  experience,  which  they  affirmed  had  demonstrated  that  uni- 
versal suffrage  gave  an  undue  control  to  the  plutocracy  of  wealthy 
manufacturers  and  other  employers  of  labor.  •  The  convention  finally 
enlarged  the  basis  of  the  franchise.  Freeholds  no  longer  qualified. 
Every  white  male  resident  taxpayer,  militiaman,  fireman,  and  laborer 
on  the  public  highways,  of  full  age,  was  to  have  a  vote  for  all  elective 
officers:'  Men  of  color  only  were  disfranchised,  unless  they  were  free- 
holders and  for  three  years  citizens  of  the  State.  Singularly  enough, 
the  most  radical  upholders  of  universal  suffrage  appear  to  have  been 
the  opponents  of  the  negroes,  whose  true  friends  were  found  in  the 
ranks  of  the  old  land-holding  and  legal  aristocracy  of  the  State. 

1  Constitution  of  1821,  Art.  FV.  Sec.  7.  passed  April  21, 1818,  each  county  was  erected  into 

2  Under  an  act  of  February  12,  1796,  seven  as-  a  separate  district.  Under  the  second  constitution 
sistant  attorney-generals  were  appointed  by  the  the  district  attorneys  were  appointed  by  the 
governor  and  council  of  appointment  during  Court  of  General  Sessions  in  each  county-  See 
pleasure.  The  attorney-general  officiated  per-  Memorial  History,  Volume  II.,  Chapter  XIV. 
sonally  in  New  York  County.  The  office  of  district  Mii  wx  tnoet  barriers  were  removed,  and  wliile 
attorney  was   created  April   4,    1801.     By   a   law  manlioDil  MUliage  made  i)ractically  univei-.sal. 


iiisronv  (•!•'   iiii;  ui:n(Ii   and  hak  t>\    m;\\    vokk  I:5:{ 

Tho  most  interest  iii.i;-  fluipter  in  tlu^  history  of  llir  convriit  inn 
relates  to  tlie  jiidieial  estultlisluni'iit,  wiiicli  we  have  seen  oweW  its 
(ixistenee  to  the  forniei'  royal  jjjovernnient,  and  its  continuance  to  the 
cousorvatisni  of  thoso  who  had  t'nuned  the  constitution  of  1777.  In 
the  year  1821,  the  Suproiuo  Court  of  Judicature  consisted  of  Chief 
Justice  S[)eucer  and  throe  associate  justic(!s,  who  were,  as  we  see  t  hem 
now,  all  able  conuuon-law  lawyers,  but  perhaps  not  free  fi-om  the 
l)eculiar  foi-nmlisni  of  tlie  old  En<rlish  law  administered  l)y  them. 
Their  political  attitude  and  their  labors  in  the  council  of  revision 
had  undoubtedly  made  them  very  obnoxious  to  the  people,  an<l  iuid 
brought  even  their  judicial  work,  winch  was  of  the  highest  order, 
into  great  and  unmerited  disrepute.  The  new  constitution  vacated 
all  judicial  offices  after  December  1,  1822,  and  thus  assured  a  new 
common-hiw  judiciary.  Various  proposals  were  made  in  convention 
to  transfer  the  entire  equity  powers  of  the  chancellor  to  the  Supreme 
Court,  and  to  render  the  court  moi'e  popular  and  accessible ;  but  this 
reform  was  postponed. 

The  changes  effected  in  the  judicial  establishment  were  not  gi'eat. 
The  powers  of  the  judges  of  the  great  courts  were  somewhat  circum- 
scribed, and  the  judges  themselves  were  removed  out  of  the  imme- 
diate realm  of  politics  by  the  destruction  of  the  council  of  revision. 
They  were  retained  as  members  of  the  old  Court  of  Errors,  consisting 
of  the  senators  and  the  higher  judiciary,  as  before,  though  the  senate 
was  rendered  much  more  democratic  by  the  jiractical  abolition  of  the 
former  property  qualification  required  of  the  electors  for  senators. 
Some  slight  change  was  made  in  the  procedm"e  of  the  court  when 
sitting  as  a  court  for  the  trial  of  impeachments.  The  powers  of  the 
Supreme  Court  justices  were  further  circumscribed,  as  it  was  sup- 
posed, by  taking  away  from  them  the  duty  of  going  the  circuit,  which 
it  was  asserted  had  been  often  made  a  political  tour  whereby  the 
authority  and  majesty  of  the  law  had  been  perverted  to  partizan  uses. 
The  circuit  and  chamber  duty  of  Supreme  Court  justices  was  trans- 
ferred to  a  new  class  of  circuit  judges,  who  might  also  be  invested  by 
the  legislature  with  an  original  equity  jurisdiction.^  Thus  relieved  of 
circuit  duties,  the  Supreme  Court  was  reduced  to  three  justices,  con- 
sisting of  a  chief  justice  and  two  associates,  who  were  to  hold  office,  as 
before,  during  good  beha\aor  or  until  sixty  years  of  age,  though  they 
might  be  removed  by  joint  resolution  oJ  the  two  houses  of  the  legis- 
lature. Although  the  Court  of  Chancery  was  not  destroyed,  Chan- 
cellor Kent's  term  of  office  was  not  extended,  and  was  left  to  expire  in 
a  few  months,  or  when  he  reached  sixty  years  of  age,-  which  hap- 

1  Constitution  of  1821,  Art.  V.  through  the   senile  infirmities  of  Chief  Justice 

2  The  same  limitation  was  contained  in  the  Horsmauden,  one  of  the  last  of  the  crown  judges, 
constitiition  of  1777.     It  was  inserted  at  the  in-      and  for  some  thirty  years  on  the  bench. 

stance  of   th'^   lawyers,  who  had    lieon    jilagued 


134  HISTORY    OF   THE   BENCH   AND   BAK   OF   NEW    YOKK 

pened  in  a  short  space.'  It  was  proposed  in  the  convention  to 
abolish  this  court  and  transfer  its  powers  to  the  hiw  courts,  but  the 
time  was  not  deemed  opportune.  Under  the  authority  of  the  consti- 
tution, which  authorized  the  legislature  to  vest  equity  powers  in  the 
common-law  judges,"  very  considerable  changes  in  the  organization 
of  the  court  were,  however,  soon  introduced  in  practice.  It  was 
thought  that  this  measure  would  lessen  or  popularize  the  power  of 
the  chancellors.  But  the  chancellors  soon  demonstrated  the  fallacy 
of  this  opinion,^  claiming  that  their  judicial  powers  were  beyond  the 
control  of  the  legislature.  The  measure,  however,  did  demonstrate 
the  feasibility  of  merging  legal  and  equitable  powers  in  the  same 
judicial  ofl&eer,  and  under  the  succeeding  constitution  it  led  to  very 
extended  reforms  of  a  like  nature. 

The  new  constitution  of  1821^  made  a  slight  alteration  in  the 
declaration  concerning  the  future  law  of  the  State.  The  original 
constitution  had  continued  a  part  of  the  statute  law  of  England  as 
the  law  of  New  York.  The  legislature,  having  consolidated  all  the 
English  statute  law  in  a  general  revision,  had  repealed  in  1788  the 
residue,  and  so  the  new  constitution,  unlike  the  first,  made  no 
reference  to  the  English  statutes,  but  declared  "  such  parts  of  the 
Common  Law  and  of  the  acts  of  the  legislature  of  the  Colony  of 
New  York  as  together  did  form  the  law  of  the  said  Colony  on  the 
19th  day  of  April,  1775,  and  the  resolutions  of  the  Congress  of  the 
Colony  and  of  the  Convention  of  the  State  of  New  York  in  force 
on  the  20th  day  of  April,  1777,  which  had  not  since  expu-ed,  or 
been  repealed,  or  altered,  and  such  acts  of  the  legislature  of  this 
State  as  were  then  in  force,  should  be  and  continue  the  law  of  this 
State,  subject  to  such  alteration  as  the  legislature  should  make  con- 
cerning the  same."  All  parts  repugnant  to  the  new  constitution  were 
excepted. 

The  other  changes  wrought  by  the  constitution  of  1821  were  in  the 
main  subordinate  to  those  indicated.  The  Bill  of  Rights  sections  were 
amplified  in  conformity  to  the  amendments  to  the  federal  constitu- 
tion. One  section,  growing  out  of  a  famous  case,  was,  however,  en- 
tirely new.^  It  provided  that,  in  all  prosecutions  for  libel,  the  truth 
might  be  giv^en  in  evidence;  and  if  it  should  appear  to  the  jury  that 
the  matter  charged  as  libelous  was  true,  and  published  with  good 
motive  and  for  justifiable  ends,  the  party  should  be  acquitted.     The 

1  When  Chancellor  Kent  left  the  bench  he  was  convention  so  moderate  a  reform  as  the  constitn- 

overwhelmed  with  attention  by  the  bar,  and  va-  tion  of  1821,  he  was  consistent, 

rious  memorials  and   tributes  were  addressed  to  -  Art.  V,  Sec.  5.          3  2  Paige,  95. 

him.  He  had  been  a  faithfnl,  learned,  and  diligent  •>  The  constitution  of  1821  came  into  full  force 

judge,  and  reflected  great  honor  on  the  State.    But  and  effect  on  the  1st  day  of  Januai-y,  1823,  but  the 

he  was  not  in  strict  accord  with   the  more  ad-  convention  was  chosen  in  1821,  and  entered  upon 

Tanced   democratic   notions   of    popular   govern-  its  duties  in  August  of  that  year. 

ment;  and  when  he  refused  even  to  sign  in  the  5  Art.  VII.  Sec.  8. 


KG 


jiii-y  were  to  liav.'  tlu*  ri,t;iil  to  (Irtmniiir  tlir  law  and  tli.'  fact  in  sudi 
cases.  Till'  history  of  this  sot'lioii  was  intiiualcly  ussociulcd  willi  the 
trial  of  (^rosswi'll,  indicted  in  180IJ  foi-  nhcli!i<^  'I'hoiiias  .JcllVrsoii,  thru 
president  of  the  United  States.  On  the  trial,  Chief  Justice  Ijc^vvis  had 
char<>:ed  the  jury  that  tiioy  wore  to  i)ass  only  on  tlu;  puljlication  of 
the  libel  and  tlie  ti-utli  of  the  innuendoes,  other  (juestions  bein<jj  re- 
served to  the  court.  Alexander  Hamilton,  in  the  motion  in  arrest  of 
judijment,  was  said  to  liavt^  mad(>  the  great- 
est arfi;ument  of  his  life,  thus  vividly  r(>call- 
inj>:  the  trial  of  Zenger,  and  the  argument 
by  another  great  advocate  of  the  same 
name,  in  the  same  court,  in  the  year  1735. 
The  court  in  banc  being  divided  in  Cross- 
well's  ease,  a  bill  was  introduced  in  the 
legislature  in  1805,  by  William  W.  Van  Ness, 
settling  the  law  on  this  j)oint.  The  pur- 
port of  this  act  was  now  thought  important 
enough  to  b(^  fixed  more  securely  by  consti- 
tutional enactment. 

In  January,  1822,  the  people  ratified  the 
new  constitution  by  a  vote  of  75,422  to 
41,497  for  the  constitution,  and  in  favor  of 
a  change  in  the  nature  of  the  original  State 
government  of  New  York.  By  the  con- 
temporaries of  this  measure  it  was  esteemed  a  revolution ;  but  as  we 
see  it  now  it  was  but  a  conservative  step  forward  in  the  march  of 
more  democratieal  institutions.  The  changes  thus  really  wrought  in 
the  political  fabric  may  be  briefly  summarized  as  follows :  The  mode 
of  exercising  the  veto  power  was  reformed  by  transferring  a  qualified 
negative  to  the  governor  alone.  A  more  democratic  method  of  exer- 
cising the  appointing  power  was  adopted,  while  complete  democracy 
was  attained  in  respect  of  many  minor  offices  made  elective.  The 
suffrage  was  so  extended  as  to  constitute  practically  white  manhood 
suffrage,  few  persons  without  property,  except  those  of  African 
descent,  being  disqualified  to  vote.-     The  senate  having  been  thus 


1  William  Paterson  was  born  in  1745,  and  his 
parents,  who  were  Irish,  brought  him  to  this  coun- 
try when  he  was  two  years  old.  He  was  graduated 
at  Princeton,  studied  law,  and  was  admitted  to  the 
bar  ill  1769.  In  1776,  he  was  a  member  of  the  New 
Jersey  State  Constitutional  Convention,  and  the 
same  year  became  attorney-general.  He  was  a 
delegate  to  the  Continental  Congress  in  1780-81 
and  to  the  National  Constitutional  Convention  in 
1787,  and  iu  178!)  was  elected  to  the  United  States 
Senate,  which  then  met  iu  this  city.  He  became 
governor  of  New  Jersey  in  1791,  and  two  years  later 
was  appointed  by  Washington  a  justice  of  the  Su- 


preme Court  of  the  United  States,  an  office  he  held 
until  his  death,  in  1806.  His  daughter  Cornelia 
married  General  Stephen  Van  Rensselaer.  (  Vide, 
'•  New-York  Genealogical  and  Biographical  Record 
of  1892,"  for  an  address  on  the  judge  by  his  grand- 
son WiUiam  Paterson  of  Perth  Amboy. ) 

Editor. 
-  It  was  not  until  1826  that  citizenship,  man- 
hood, and  residence  became  the  avowed  basis 
of  the  electoral  franeliise  (Constitutional  Amend- 
ment of  1826)  for  the  white  part  of  the  population, 
negroes  being  required  until  1870  to  be  freeholders 
paying  tax  before  they  were  entitled  to  vote. 


136  HISTORY    OF   THE   BKXCH   AND    BAR   OF   NEW   YORK 

popularized,  the  Court  of  Errors,  then  constituted  in  the  senate,  was 
brought  nearer  to  the  great  body  of  the  i)eople.  The  original  courts 
of  justice  of  New  York,  the  Chancery  and  the  Supreme  Court,  were 
left  in  such  a  condition  that  the  chancellor  and  the  Supreme  Court 
justices  were  no  longer  officers  of  State,  but  were  to  exercise  judicial 
functions  only,  of  which  they  might  be  largely  shorn  by  the  power 
reserved  to  the  legislature,  and  affecting  their  several  jurisdictions. 
The  defect  in  the  original  constitution,  which  made  no  provision  for 
its  future  amendments,  was  remedied  by  Article  YIII  of  the  new  in- 
strument, prescribing  the  formalities,  including  a  vote  of  the  electors, 
to  attend  future  amendments.  This  amendment  was  taken  from  a 
similar  provision  in  the  constitution  of  Massachusetts,  and  obviated 
the  necessity  of  a  convention  upon  each  change  proposed  thereafter. 

In  several  respects  the  new  constitution  still  reflected  ancient  class 
prejudices:  the  governor  must  be  chosen  from  the  body  of  free- 
holders, and  must  be  a  native  citizen  of  the  United  States.  Neither 
the  possession  of  personal  estate  nor  naturalization  was  sufficient  to 
qualify  a  non-freeholder  and  an  alien  born  for  this  office.  The  ex- 
periment of  voting  by  ballot,  having  been  provided  for  in  the  first 
constitution  and  having  proved  successful,  was,  in  the  new  constitu- 
tion, made  imperative  on  the  future. 

The  first  legislature  under  the  new  constitution  was  overwhelmingly 
Democratic,  not  a  single  senator  being  of  the  other  political  party. 
Governor  Clinton  met  the  legislature  when  it  convened,  and  delivered 
a  sfjeech  to  them,  which  was  met  with  a  motion  for  a  committee  to 
consider  the  propriety  of  answering  it.  This  committee  made  a  re- 
port animadvertifag  in  terms  of  severity  upon  the  governor,  and  pro- 
nounced the  practice  of  delivering  a  sj^eech  instead  of  a  message  "  a 
remnant  of  royalty"  which  ought  not  to  be  tolerated.  This  incident 
serves  only  to  indicate  the  jealous  deprecation  of  the  ancient  customs 
of  New  York,  and  that  with  the  new  constitution  the  people  intended 
more  fully  to  break  with  the  past  and  to  enter  upon  a  genuine  era  of 
republican  government. 

In  April,  1823,^  the  legislature,  pursuant  to  the  new  constitution, 
divided  the  State  into  circuits  for  the  purpose  of  organizing  the  new- 
Circuit  Courts  carved  out  of  the  old  Supreme  Court,  and  substituted 
for  the  old  nisi  prins  or  itinerant  sessions.  By  the  same  act,  the 
new  circuit  judges,  who  possessed  the  powers  of  the  old  justices  of 
the  Supreme  Court  in  chambers  and  on  circuit,  wer,^  required  to  reside 
within  the  circuit  for  which  they  were  appointed.  This  last  provision 
for  prudential  reasons  had  not  been  thrust  on  the  convention,  as  it 
might  have  alienated  the  votes  of  those  who  were  believed  to  be  can- 
didates ;  but  the  idea  was  nevertheless  very  influential  in  animating 

Chapter  182. 


I 


iiiNioKV  OK   iiiK  hi:n(  II   AMI   KAi:  1)1'  NKU    v<ii:k  1:57 

some  iM'i-soiis  who  i-(\i;ar(l«Ml  the  old  courts  as  ci-iil  nili/.rd  iii.sl  it  uf  ious 
uud  too  closely  connected  in  their  traditions  with  ante-ivvolulionary 
times.  This  sclu)ol  of  thought  desired  a  local  judiciary  of  lirst  in- 
sttmce,  rather  than  oiu^  wiiose  doinicile  and  insj)irati()n  wen^  to  Ix 
found  at  the  seat  of  government.  This  was  the  be^inninj^of  that  n;- 
form  in  tiio  Judicial  eslahlishment  of  New  York  which  consists  in 
decentralizing  or  rather  locali/inj;  all  tho  courts  of  first  instance, 
thus  constitutiuf?  them  county  rather  than  State  tribunals. 

In  182;}  an  act  was  passed  authorizing?  tho  circuit  judges  to  hold 
Courts  of  E(|uity;  it  was  soon  repealed  and  tho  power  restored  to 
the  chancellor,  but  the  circuit  judges  were  to  act  as  vice-chancellors 
within  their  circuits.  In  tho  year  1826,  in  the  first  district,  end^racing 
the  city  of  New  York,  equity  jurisdiction  was  conferred  on  a  legal 
officer  termed  the  vice-chaucellor;  for  in  this  district  the  volume  of 
litigation  demanded  an  increase  in  the  number  of  judges.  From  time 
to  time  other  coadjutors  were  in  like  manner  appointed.  By  an  act 
of  1823,*  the  Court  of  Probates,  founded  in  1778,  was  abolished,  and  its 
original  probate  jurisdiction  was  transferred  to  the  surrogates  of  the 
various  counties,  but  subject  to  an  appeal  to  the  chancellor,  who  was 
invested  with  tlie  residuum  of  the  jurisdiction  of  the  Court  of  Pro- 
bates not  otherwise  delegated. 

We  come  next  to  one  of  the  most  important  reforms  instituted  under 
the  second  constitution  —  tho  Revised  Statutes.  Before  treating  of 
this  celebrated  work,  let  us  review  for  a  moment  the  prior  revisions 
of  the  statute  law  of  the  State.  The  first  revision  was  the  joint  work 
of  Samuel  Jones  and  Richard  Varick,  and  was  effected  under  an 
act  passed  in  1786.  The  second  revision  of  the  acts  of  the  State 
legislature  was  undertaken  as  a  private  or  commercial  venture  by 
Thomas  Greenleaf.  The  second  edition  of  Greenleaf's  work  brought 
the  revision  of  the  State  laws  to  a  period  nine  years  later  than  that 
of  Messrs.  Jones  and  Varick,  and  as  it  was  recognized  by  the  courts  as 
a  faithful  work,  it  received  a  judicial  sanction,  accorded  to  no  other 
private  edition  of  laws,  excepting  perhaps  the  Webster  j)ublications 
from  1802  to  1812  inclusive  The  next  revision  of  the  laws  was  under- 
taken by  Justices  Kent  and  Radcliff,  pursuant  to  an  act  of  the  legis- 
lature;- this  soon  became  the  corrected  version  of  the  public  and 
private  acts  of  the  State.  This  revision  simply  omits  the  laws  or  parts 
of  laws  abrogated,  and  pursues  a  chronological  arrangement  of  the 
first  volume  and  a  subject  arrangement  of  the  second.  The  new  re- 
vised laws  of  1813  next  superseded  Kent  and  RadclifPs  revision.  By 
an  act  of  the  legislature,^  William  P.  Van  Ness  and  John  Woodworth 
were  directed  to  arrange  the  laws  of  a  general  and  permanent  natui'e 

1  Chapter  70.      »  Chapter  190,  Laws  of  1801.     3  Chapter  150,  Laws  of  1811 ; 
Chapter  195,  N.  R.  L.  of  1813. 


138 


HISTOKY    OF   THE   BENCH   AND   BAR   OF   NEW   YORK 


systematically  in  divisions  under  proper  heads,  with  such  marginal 
notes  as  appeared  to  be  best  calculated  for  public  information.  As 
the  revision  of  Jones  and  Varick  was  the  first  of  the  State  revisions 
in  point  of  time,  so  that  of  Van  Ness  and  Woodworth  was  facile 
prlnceps  in  point  of  method  and  arrangement ;  the  marginal  notes, 
prepared  by  John  V.  N.  Yates,  and  included  in  the  revision  of  1813, 
are  among  the  most  valuable  expositions  of  the  laws  of  this  State  ; 
they  oftentimes,  by  enumerating  the  various  English  and  colonial  acts 
which  contained  like  provisions,  embrace  a  succinct  history  of  the 
statutes  to  which  they  refer.  Even  at  the  present  day  the  history  of 
many  legislative  measures  may  be  more  easily  gathered  from  this 
revision  than  from  any  other  single  work,  and  it  remains  a  profound 
example  of  faithful  professional  service.' 


HALL  pauk  in   IM2 


The  revisers  of  1813,  imitating  the  example  of  Messrs.  Jones  and 
Varick,  did  not  include  in  their  revision  the  colonial  acts  which  re- 
mained in  force  under  the  35th  section  of  the  State  constitution. 
Printed  as  an  appendix  to  the  revision  of  1813  are  to  be  found  several 
acts  of  the  colonial  assembly  which  the  revisers  thought  would  be 
useful  to  the  profession.  Among  these  is  the  "  Charter  of  Libertys  " 
enacted  by  the  first  regular  legislature  of  New  York  in  10S3  ;  the 
Ordinances  of  Lord  Bellomont  and  Viscount  Cornbury — continuing  the 
Supreme  Court  of  New  York  after  the  act  of  the  legislature  passed  in 
1891  had  exjjired  by  limitation— are  also  included  in  such  appendix. 
As  illustrating  several  questions  concerning  the  former  i)rovincial  law  of 
inheritances,  which  long  retained  some  elements  of  the  Dutch  juris- 
prudence, the  revisers  appended  also  the  Articles  of  Capitulation 
between  the  Dutch  and  English,  signed  in  1664.     They  might,  with 

»  See.  however,  the  commentary  on  the  revision  of  1813  by  Samuel  Jones,  co-author  of  Jones  and  Varick's 
Hevision  (N    Y.  Historical  Society's  Col.,  lU.). 


iiisioiiv   <iK    iiiK  ni:.N(  II    AM»   i'.\i;  m    n  i  \\    ^i>i:k  i:!l) 

('(|iiiil  propriety,  liiiNc  iiicliidrd  iti  t  lie  ;i|i|)rii,li\  I  lir  (Idiiiit  i\c  t  mil >■  of 
]u'a('(>  bolwtHMi  Oreut  Hrilnin  find  tlii!  I'liitcd  Stales  in  17^:!,  for  it 
was,  with  iinusiiiil  particularity,  iiiado  a  fiuidaiiieidal  jiariof  tlic  State 
law  by  an  act  of  tlio  legislature,  {)asse(l  in  1788,'  i-i^pealiiif^  all  acts  and 
])arts  of  acts  which  conllicted  with  tho  treaty  in  (pu.'stion. 

To  recur  to  the  revision  undei-  tho  second  constitution  of  tlio  State, 
ill  the  year  1821],  and  aj^ain  in  1824,  (lovernor  Yates  directed  the 
attention  of  the  legislatin-e  to  tho  condition  of  the  statute-ljook  of 
the  State,  and  recomnionded  a  revision  on  account  of  tho  ehan<;es 
made  in  the  law  by  the  eonstitutioTi  of  1821-;},  and  tlie  very  confused 
and  scattered  situation  of  the  statutes.'-  Obedient  to  the  governor's 
suggestion,  an  act  was  passed,  at  the  following  session  of  the  legis- 
latuns''  for  the  purposes  indicattnl.  This  act  of  1824,  though  soon  re- 
pealed, is  important  as  the  precursor  of  the  Re%dsed  Statutes.  The 
revisers  designated  by  it  were  of  very  different  types  of  thought. 
Chancellor  Kent  was  selected  as  the  exponent  of  the  traditional  school 
of  law ;  Erastus  Root,  the  lieutenant-governor,  as  tho  most  radical  of 
the  reforming  lawyers.  Benjaudn  F.  Butler,  then  a  young  lawyer 
associated  with  Martin  Van  Buren,  was  the  third  reviser  under  this 
act.  By  the  act  of  1824,  the  revisers  were  authorized  and  directed, 
among  other  things,  to  collect  and  to  reduce  into  proper  form  all  acts 
of  the  legislature  then  in  force,  omitting  all  the  acts  repealed,  and  re- 
ducing tho  various  acts  upon  tho  same  subject  to  acts  of  one  chapter 
each ;  they  were  also  to  report  to  the  legislature  the  defects  in  tho 
existing  laws.  Two  years  were  allowed  for  the  contemplated  re\ision, 
which,  like  its  predecessors  of  1802  and  1813,  was  to  bo  little  more 
than  an  orderly  arrangement  of  the  statutes  then  in  force,  with  a 
proper  index  for  more  convenient  use. 

Chancellor  Kent,  for  reasons  easily  perceived  from  the  reports  of 
the  constitutional  convention  of  1823,  refused  to  act  with  any  one 
else ;  and  the  governor  designated,  in  his  stead,  John  Duer.  There 
seems  to  have  been  little  or  no  sympathy  existing  between  General 
Root  and  his  associates,  Messrs.  Duer  and  Butler,  who,  quite  inde- 
pendently of  their  colleague,  submitted  the  plan  of  tho  re\dsion  which 
they^  deemed  to  be  the  most  suitable.^  Meanwhile  General  Root  had 
been  proceeding  on  his  own  account  with  the  revision  of  the  laws  re- 
lating to  taxation  and  highways. 

During  tho  legislative  consideration  of  Messrs.  Duer  and  Butler's 
proposed  amended  bill  giving  larger  scope  to  the  revisers,  the  name 
of  Henry  Wheaton  was  substituted  for  that  of  Erastus  Root.  The 
senate  non-concurring  in  this  particular  amendment,  a  compromise 
was  attained  by  directing  compensation  to  be  given  to  General  Root 

1  Chapter  41.        2  "Assembly  Journal."  1824.  p.  9.        3  Chapter  336,  Laws  of  1824. 
4  See  Appendix  D,  ".Toumal  of  Assembly,"  1825. 


140  HISTORY    OF   THE   BENCH   AXD    BAR   OF   NEW    YORK 

for  his  services  in  the  matter.^  The  amended  bill  then  became  a  law." 
In  their  suggestions  to  induce  the  legislature  to  enlarge  the  scope  of 
the  revision,  Messrs.  Butler  and  Duer  stated,  among  other  things,  that 
they  conceived  that  not  only  a  reduction  of  all  the  laws  on  the  same 
subject  into  chapters  was  necessary,  but  also  an  entire  new  arrange- 
ment of  the  existing  statutes.  This  they  thought  would  reduce  the 
statutes  then  in  force  to  half  their  extent ;  it  would  render  them  so 
concise,  simple,  and  persj^icuous  as  to  be  intelligible  not  only  to  pro- 
fessional men,  but  to  persons  of  every  capacity ;  it  would  relieve  the 
statutes  from  obscurities,  lead  to  an  easy  reference  by  proper  indexes, 
and  greatly  facilitate  the  acquisition  of  the  law  as  a  science.  Lastly, 
it  would  supersede  the  necessity  of  all  future  revisions,  and  prepare 
the  way  for  a  scientific  codification  of  the  law.  Utopian  as  the  scheme 
then  seemed,  it  nevertheless  led  to  what  may  be  called  the  most 
brilliant  achievement  ever  then  performed  upon  the  text  of  the 
English  common  law.  It  is  even  highly  probable  that  future  revi- 
sions might  long  have  been  dispensed  with,  had  the  revisers'  plan 
been  carried  out,  and  had  each  new  act,  as  passed,  been  assigned  to 
its  appropriate  chapter,  by  some  person  or  persons  whose  duty  it 
was  to  prepare  the  session  laws  for  publication.  That  the  revision 
led  to  codification  may  well  be  believed,  for  even  Jeremy  Bentham, 
in  a  letter  to  Livingston  of  Louisiana,  approved  of  the  work. 

But  to  follow  the  inception  of  this  great  revision.  The  act  of  1825,^ 
thus  amending  the  original  act  of  1824,  reappointed  Mr.  Butler,  added 
the  governor's  appointee,  Mr.  Duer,  and  substituted  Mr.  Wheaton, 
afterward  the  distinguished  publicist,  for  General  Eoot  in  the  corps 
of  revisers.  That  the  substitution  of  Mr.  Wheaton  added  much  to  the 
philosophic  conception  and  character  of  the  work  ought  not  to  be 
doubted ;  but  greater  praise  is  due  to  the  other  revisers,  for  they,  with 
Mr.  Spencer,  completed  the  whole  work  with  a  lucidity  and  a  felicity 
of  expression  at  that  time  unparalleled  in  the  history  of  statutes  com- 
posed in  the  English  tongue. 

The  act  of  1825  empowered  and  directed  the  revisers  to  collect  all 
public  acts  in  force  at  the  end  of  the  forty-eighth  session  (1825),  and 
to  reduce  and  consolidate  into  one  act  all  the  different  acts  relating  to 
the  same  subject,  distributing  them  under  such  titles,  divisions,  and 
sections  as  they  thought  proper,  but  omitting  all  acts  and  parts  of 
acts  repealed  or  expired  by  limitation.  In  every  other  respect  the 
revisers  were  to  complete  the  revision  in  such  a  manner  as  to  them 
seemed  most  useful  and  proper  to  render  the  revised  acts  more  plain 
and  easy  to  be  understood.  From  time  to  time  they  were  to  report 
the  revision  to  the  legislature,  to  be  roenacted  if  that  body  saw  fit.  An 
important  feature  of  the  act  of  1825  was  the  advisory  power  it  con- 

1  "Assembly  Journal,"  1825,  p.  1173.  2  Chapter  324,  Laws  of  1825.  3  Chapter  324. 


II I.'^ 


i;v 


IIIK    HI'  N(   II     A.M>    I!  \i:    n 


I -11 


ferrcd  oil  llic  rcxiscrs,  who  \v»>it>  lo  sii^^^csl  lo  tlic  lt';;islaliirr>  all  siidi 
(•lmnj?(.'s  as  tlu'\-  <l  ■ctind  (>x|H>(li(int  in  tim  .stutiili^  law  ol"  tlx-  Slate. 
Two  years  were  allowed  hy  \\n)  act  to  complt'to  llio  revision. 

In  the  ytuir  1S2(),  tho  niviscrs,  Messrs.  Hntlor,  Diicr,  and  Whc^aton, 
mapped  out  more  coniplotcly  th«^  phin  of  the  revision,  and  ejassilied 
tho  statutes  to  bo  rovised.  'I'h(>y 
linally  dotonuinod  ii]>on  dividing 
tho  work  into  live  principal  divi- 
sions, as  follows:  Tho  lirst  part  to 
contain  those  acts  which  related  to 
tho  territory,  the  political  division, 
tho  civil  polity,  and  the  internal 
adininistratiou  of  the  State ;  the 
second  part,  those  acts  which  re- 
lated to  real  and  personal  property, 
the  domestic  relations,  and  to  all 
matters  <ijenerally  connected  with 
private  rights;  the  third  part  to 
contain  the  statutes  relating  to  the 
judicature  branch  of  government 
and  to  the  procedure  in  civil  cases ; 
the  fonrth  part  to  be  concerned  ^/^-  ^^f^^s-o^x^ 
with  the  statutes  relating  to  crimes,  ^ 

punishments,  and  to  the  mode  of  procedure  in  criminal  cases,  and  to 
prison  discipline ;  and  tho  fifth  part  with  the  laws  relating  to  cities, 
villages,  and  other  corporations. 

The  first  and  fifth  parts  of  the  Revised  Statutes,  relating  to  the  ter- 
ritory, the  political  divisions,  the  civil  polity,  and  the  internal  admin- 
istration of  the  State,  are  of  the  least  interest  in  a  purely  juristic  or 
scientific  phase  of  the  revision ;  but  they  were  of  great  utility. 

There  is  little  doubt  that  the  general  and  comprehensive  plan  of  the 
whole  re\'ision  of  18l29  had  the  valuable  cooperation  of  Mr.  Wheaton. 
The  first  part  of  the  Revised  Statutes  was  the  work  of  Mr.  Wheaton, 
Mr.  Butler,  and  Mr.  Duer ;  but  before  this  part  of  the  re\-ision  was 
acted  on  by  the  legislature,  Mr.  Wheaton  was  sent  abroad  in  a  diplo- 
matic capacity,  and  Mr.  John  C.  Spencer  took  his  place.  After  Mr. 
Spencer's  appointment  considerable  additional  labor  was  bestowed  on 
the  part  already  prepared;  and  it  may  be  said,  therefore,  that  the  first 


1  Josiah  Ogden  Hoffman  was  a  distinguisliod 
lawyer,  and  was  the  father  of  MniTay  Hoffman, 
the  jurist  and  anther  of  several  works  on  chan- 
cery and  ecclesiastical  law;  of  Ogden  Hoffman, 
the  shifted  orator  and  la\\->-er,  who  was  counsel  in 
almost  every  prominent  criminal  case  in  New-York 
city  for  twenty-five  years,  and  who  had  boon  a 
member  of  Compress,  U.  S.  district  attornev.  and 


State  attorney-general:  and  of  Charles  Fenuo 
Hoffman,  the  accomplished  man  of  letters.  Mr. 
Hoffman  was  a  warm  friend  of  Washington 
Irving,  who  studied  law  in  liis  office.  It  was  to 
his  daughter  JIatilda  that  Irving  was  engaged. 
When  he  died,  her  Bible,  containing  a  lock  of  her 
hair,  was  found  under  liis  pillow. 

Editor 


142 


HISTORY  OF  THE  BENCH  AND  BAR  OF  NEW  YORK 


part  of  the  Revised  Statutes  was  the  work  of  four  revisers,  and  not 
of  three,  as  originally  contemplated.' 

While  the  revisers  in  their  general  arrangement  mainly  adopted  the 
system  employed  in  Blaekstone's  Commentaries,  and  took  the  titles  of 
the  various  chapters  of  the  revision  from  that  celebrated  work,  yet 
they  made  discriminating  changes  and  avoided  some  errors  made  by 
Blackstone  himself,  notably  his  division  of  the  jus  privation  into 
"  rights  of  persons  and  rights  of  things,"  criticized  by  Austin, — things 
being  incapable  of  rights  and  a  mistranslation  of  the  phrase  of  the 
civilians,  "Jws  rcrum.^^  No  opponent  of  Blackstone  has  ever  denied 
that  his  arrangement  was  eminently  practical.  The  revisers  could 
not,  therefore,  have  taken  a  plan  more  familiar  to  lawyers  than  this, 
and  it  added  to  the  success  of  the  work. 

If  we  except  the  Statute  12,  Car.  II.,  ch.  24,  converting  most  of  the 
feudal  tenures  in  England  into  free  and  common  socage,  and  sound- 
ing the  knell  of  the  entire  feudal  system.  Part  II  of  the  Revised 
Statutes  of  New  York  embodied  the  most  important  reforms  ever 
made  by  a  single  statute  in  the  historic  land  law  of  an  English-speak- 
ing people." 


1  See  Senate  Journal,  1827,  p.  32 ;  Revisers'  Re- 
ports to  the  Legislature  with  chapters  9  and  19  of 
the  first  part. 

2  The  better  to  note  some  of  the  more  important 
changes  introduced  in  the  land  law  of  New  York 
by  the  revisers,  in  the  second  part  of  their  re^^- 
sion  (the  first  three  chapters  of  which  are  devoted 
to  this  subject),  we  may  briefly  recall  the  condi- 
tion of  this  branch  of  our  jurisprudence  prior  to 
this  revision.  Charles  n.,with  what  right  pre- 
viously inquired,  granted  the  tenitory  occupied 
by  the  Dutch  of  New  Netherland,  and  much  more 
adjacent,  to  the  Duke  of  York  by  letters  patent, 
dated  March  12,  1664,  and  subsequently  by  letters 
confirmatory,  dated  in  1674.  By  both  these  patents 
the  tenure  of  the  province  was  "  as  our  Manor  of 
East  Greenwich  in  our  county  of  Kent,  in  free 
and  common  socage,  and  not  in  capite,  nor  by 
knight's  service."  At  the  date  of  the  first  patent, 
the  Statute  12,  Car.  II.,  ch.  24,  had  already  swept 
away  most  of  the  burdens  of  feudal  tenures  in 
England.  The  socage  tenure  in  1664  remained 
subject  only  to  the  feudal  incidents  of  relief,  rent, 
fealty,  and  escheats.  As  thus  modified,  the  socage 
tenure  was  introduced  in  New  York.  The  rent  in- 
cident to  it  was  a  quit-rent  of  trifiiiig  value  (some- 
times, in  New  York,  a  bushel  to  the  hundred  acres, 
but  in  1732  the  surveyor-general's  report  puts  it  at 
2s.  6d.  for  the  same  (luaiitity);  tlic  relief  payable 
by  the  heirs  on  the  un<Mst(ii's  death  was  the  equiv- 
alent of  a  year's  quit-rent,  while  the  oath  of  fealty 
was  commonly  never  exacted,  and  escheats  were 
no  more  bui-densome,  in  practice,  than  at  the  pres- 
ent time.  After  the  English  conquest  the  former 
Dutch  inhabitants  generally  renewed  the  titles  to 
their  lands  by  taking  out  new  patents,  which  re- 
cited the  Dutch  ground-brief  and  confirmed  the 
possession  of  their  lands,  to  be  held  of  tlie  ducal 
proprietor  in  free  and  common  socage.     The  new 


inhabitants  took  out  their  patents  from  the  duke's 
agents  in  one  of  the  prescribed  forms  of  convey- 
ance. Subsequent  to  1664  the  modified  socage  ten- 
ure alone  existed  in  New  York.  It  will  be  recalled 
that,  on  the  Duke  of  York's  accession  to  the  throne, 
his  private  estate  in  the  province  was  merged 
in  the  crown,  and  he  became  seized  thereof  jhck 
cormioi.  On  the  abdication  of  James  II.,  the  prov- 
ince of  New  York  pursued  the  line  of  devolution 
prescribed  by  the  act  of  settlement,  the  crown  pos- 
se.ssions  and  the  crown  being  concomitantia.  The 
duke's  estate  before  he  ascended  the  throne  was 
in  the  nature  of  a  feudatory  principality ;  after  the 
merger  it  became  a  royal  province,  transmitted 
secundum  jus  coroiue,  and  thus  it  remained  until 
the  war  of  independence. 

Comparatively  recently  it  was  made  a  debatable 
question  whether  the  statute  quia  emptores,  prohib- 
iting subinfeudation,  was  in  force  in  the  pro\'ince 
of  New  York ;  and  the  revisers  seem  erroneously  to 
have  thought  not  (see  3  R.  S.,  565,  2d  ed..  Rev. 
Notes),  and  the  Court  of  Appeals,  in  the  case  of  De 
Peyster  v.  Michael  (6  N.  Y.,  503),  assumed  the  same 
thing.  But  in  a  later  case  (People  f.  Van  Rensselaer, 
9  N.  Y.,  338)  Judge  Denio  doubted  the  correctness 
of  the  conclusion,  and  in  the  still  later  case  of  Van 
Rensselaer  v.  Hayes  (10  N.  Y.,  74)  he  demonstrated 
the  absurdity  of  the  conclusion  that  tlie  statute  was 
not  generally  in  force  in  the  province  of  New  York. 
The  fact  is  one  of  considei-uble  importance ;  for  if 
this  statute  was  not  in  force,  a  necessary  conse- 
quence was  that  the  feudal  system  flourished  here 
during  the  entire  English  dondnion,  and  for  ten 
years  subsequent  (or  until  the  statute  was  enacted 
in  .lones  and  Varick's  revision),  with  a  vigor  en- 
tirely unknown  to  contemporary  England.  The 
ob\aous  error  that  this  statute  was  not  in  force 
seems  to  have  arisen  by  reason  of  not  distinguish- 
ing between  the  manors  and  the  residue  of  the 


lti:.N(   II     AM 


N  1  \\    \(>\:k 


iii.->MM>>     <'!•      1  1 1  r.    i>r.  .><   II     .x.\i>     i.\ii    <'r     .>  i   \\      iiii;k  Is  a 

Allli()ii,i;li  IIh'  law  <.f  it;i1  pi-op.Tt y  iviiijiinr.l  n  (liniciilt  l)i;iii.'li  ..) 
lofjal  S('i(Mic<',  >i'l  the  i-t'\isri-s  dl'  iSi'it  (lid  iiiiicli  to  rid  it  of  iiiiuiy 
suhtlotios  wliicli  had  Im'cii  I'liscd  oil  il  li\  I  Ik-  |iolilicul  uiid  social  pro- 
t'essos  tlirougli  wliicli  \\\o  conmioii  law  had  passed.  'I'lic  rcroiin  in 
(inostioii  was  accomplislicd  not  ^)  nmch  l»y  tli(^  introduction  ol'  mu 
rul(>s  of  law,  as  ny  the  judicious  selection  and  api)licati<)n  of  tln' 
wisest  of  the  old  rules,  and  hy  the  total  repeal  of  nuM-e  scholastic 
subtleties. 

Tiio  cardinal  reform  of  the  Revised  Statutes  concernin<i;  lands  did 
not  consist  so  nuich  in  sliortoning  the  period  during  which  the  power 

laiuls  ill  till'  iirii\  iiicr.      Tlic  firoiicous  pivsiimp-      nml  so  eontinuoil  until  the  Revised  Stftttitcs   in 


lands  ill  tlio  [ 

tion  WIU4  that,  l)i>civus( 

sttttuti"  was  not  in  force  wIutcms  \,\   ih iniiuon 

luw,  lion  obsttnite  the  stnlutc  tlir  UiiLi;  inif;lit  ^rriint 
the  rijjht  to  his  tenants  to  aliciuito  lands  to  bo 
holden  of  the  tenant,  and  thus  create  a  manor, 
where  the  lands  were  not  in  tenure  prior  to  IS 
Edw.  I.  The  lands  in  Now  York  not  embraced 
in  the  manor  prants  were  within  the  statute,  and 
could  not  be  aliened  to  be  held  of  other  lord  or 
person  than  the  king.  In  short,  every  sub-aliena- 
tion of  those  lands  in  New  York,  not  situated 
within  the  manors,  placed  the  new  tenant  in  the 
same  position  toward  the  king,  the  lord  para- 
mount, as  that  occuiHod  by  the  frruntor. 

During  the  entire  colonial  or  provincial  period, 
lauds  in  New  York  were  theoretically  subject  to 
the  same  laws  as  socage  lands  in  the  royal  manor 
of  East  Greenwich,  in  the  county  of  Kent,  in  Eng- 
land. In  point  of  fact,  such  lands  were  almost  en- 
tirely e.xempt  from  the  nominal  rents  on  which 
they  were  holden  of  the  crown.  It  must  not  be 
forgotten  that  formerly  no  such  thing  as  an  abso- 
lute ownership  of  socage  lands  was  known  ;  the 
tenant  had  only  an  estate  in  them.  This  estate, 
without  alluding  to  the  more  subtle  distinctions, 
was  either  an  estate  for  years,  for  life,  an  estate 
tail,  or  in  fee  simple,  the  latter  being  far  from  ab- 
solute in  the  eyes  of  the  feudalists.  The  method 
of  transmitting  title  to  socage  lands  in  New  York 
was,  until  some  tinu>  subsequent  to  the  war  of  in- 
dependence, in  accord  with  the  method  in  vogue 
in  England,  whether  by  descent  (the  law  of  pri- 
mogenit\n-o  being  in  force  here  until  the  year  1782); 
by  purchase,  in  its  generic  sense  as  well  as  in 
its  limited  sense ;  by  deeds  of  feoffment  with  liv- 
ery of  seizin,  by  lease,  by  exchange  at  common 
law,  by  partition,  by  releases,  by  defeasance,  by 
devise,  and  aU  conveyances  operating  by  virtue  of 
the  statute  of  uses.  In  addition  to  these  modes, 
ahenations  by  matters  of  record,  such  as  tines  and 
recoveries,  until  the  abolition  of  estates  tail  in 
1782,  and  even  subsequent  (see  2  J.  and  V.,  p.  84 ; 
c.  250,  Laws  of  1827),  were  not  unknown  in  New 
York,  as  is  shown  by  Mr.  Wyche's  work  on  the 
"Theory  and  Practice  of  Fines,"  one  of  the  first 
law  books  written  and  published  in  New  York.  (It 
was  published  in  1794.)  Of  the  conveyances  by 
force  of  the  statute  of  uses,  that  kind  termed  lease 
and  re-lease  was  most  commonly  employed  in  New 
York  prior  to  the  revision  of  tlie  English  statutes 
by  Jones  and  Varick  in  1788,  when  the  mode 
termed  bargain  and  sale  became  most  prevalent. 


and  so  continued  until  the  Revised  Stattitcf 
18,'iO.  AUenatiou  of  lands  by  devise,  attested  un- 
der the  stattite  Car.  II.,  was  commonly  em- 
idoyed  in  New  York  from  the  very  foundation  of 
the  English  government  of  the  province.  Among 
the  earliest  English  laws  of  New  York  we  find 
distinct  recognition  of  wills.  The  adoption  of  the 
English  law  of  wills  introduced  the  intricate  com- 
mon-law rules  relating  to  e.xecutory  devises.  Yet 
of  all  the  intricacies  relating  to  the  common  law, 
those  concerning  executory  devises  were  among 
the  most  rational,  for  they  arose  out  of  a  most 
candid  effort  to  effectuate  the  intentions  of  devi- 
sors. Therefore,  when  tlir  rivis(  r^  cif  the  statutes, 
appointed  after  the  sccoml  rmi^i  iiution,  came  to 
select  rules  relating  to  ciTiain  l'utiii-c  interests  in 
lands,  they  gave  the  prefrniuc  tu  ihuse  rules  and 
principles  of  the  common  law  wliicli  were  applied 
to  executory  devises,  rather  than  to  those  relating 
to  future  uses  and  contingent  remainders. 

The  establishment  of  the  State  government  in 
1777  made  but  formal  changes  in  the  tenures  of 
New  York  and  in  the  law  of  real  property.  In- 
deed, it  may  be  said  that  until  the  Revised  Statutes 
the  changes  effected  in  the  provincial  jurispru- 
dence relating  to  land  were  but  slight  in  compari- 
son to  tliosi'  then  introduced.  Among  the  more 
iiKirki  .1  ili:iiii;<s  effected  before  the  Revised  Stat- 
utts  wci'v  I  lie  following:  A  resolve  of  the  pro- 
vincial convention  transferred  the  seigniory  and 
escheats  and  all  lands. together  with  the  quit-rents 
due  to  the  crown,  to  the  State  eo  nonihie.  This 
statute  was  further  confirmed  by  an  act  of  the 
legislatui-e  recognizing  tlie  people,  passed  in  177!> 
(14.  IJ.  &  v.,  p.  44;  aG  N.  Y..  503).  In  1782  the 
first  of  the  statutes  affecting  the  antecedent  law 
of  real  property  was  passed  (ch.  2,  Laws  of  1782). 
Estates  tail  were  altered  into  estates  in  fee  sim- 
ple, the  law  of  primogeniture  was  aboUshed.  and 
the  canon  of  descents  was  made  to  conform  to  the 
more  democratical  institutions.  In  1786  the  stat- 
ute abolishing  entails  and  changing  the  course  of 
descents  was  reenact«d,  but  with  this  difference : 
estates  tail  were  converted  into  estates  in  fee  sim- 
ple absolute,  thus  avoiding  any  question  as  to 
whether  the  statute  of  1782  had  not  intended  sim- 
ply to  change  estates  in  fee  tail  into  conditional 
fees,  as  they  had  existed  in  England  prior  to  the 
statute  f7<!  doiiis.  It  is  sometimes  supposed  that 
when  that  portion  of  the  statute  law  of  England 
which  extended  to  New  York  was  revised  by 
.Tones  and  Yarick,  some  new  principles  affecting 
the  law  of  real  property  were  introduced.     This 


144 


HISTORY  OF  THE  BENCH  AND  BAR  OF  NEW  YORK 


of  alienation  might  be  suspended,  as  in  the  repeal  of  purely  arbitrarj' 
technicalities  and  in  substituting  therefor  uniform  and  rational  pro- 
visions. Under  the  Revised  Statutes  almost  any  limitation,  artificial 
or  inartificial,  was  valid  if  it  did  not  contravene  some  well-known 
principle  of  public  policy,  or  the  new  rule  against  perpetuities  ;  a  fee 
might  be  mounted  on  a  fee  as  freely  by  deed  as  by  executory  devise ; 
a  freehold  estate  might  be  created  to  commence  at  a  future  day ;  an 
estate  for  life  might  be  created  in  a  term  of  years,  and  a  valid  re- 
mainder limited  thereon;  a  remainder  of  freehold  might  be  created 
expectant  on  the  determination  of  a  term  of  years,  provided  only 
that  such  limitation  in  no  way  transcended  the  rule  against  perpe- 


supposition,  however,  is  incorrect;  no  new  prin- 
ciples affecting  this  branch  of  jurispnidence  were 
enacted,  and  all  that  Jones  and  Varick  did  was  to 
select  the  English  statutes  which  they  deemed  in 
force  in  New  York  after  the  adoption  of  the  first 
constitution.  The  legislature,  then,  in  order  to 
reduce  a  doubtful  question  to  certainty,  repealed 
the  residue  not  so  selected  for  reenactment,  by  de- 
claring their  force  to  be  at  an  end  (2  J.  &  V.,  282). 

The  statute  abolishing  entails  was  not  a  reform 
of  such  great  importance  as  it  is  sometimes  es- 
teemed, for  entails  might  be  broken  and  lands  ren- 
dered alienable  by  the  tenant  of  the  freehold's 
suffering  a  fine,  or  common  recovery,  thus  baning 
the  entail,  reversion,  or  remainder,  and  converting 
the  estate  into  one  in  fee  simple.  The  force  of 
the  New  Vork  statutes  converting  estates  tail  into 
estates  in  fee  simple,  like  all  statutes  attempting 
reforms  without  complete  reference  to  collateral 
results,  was  greatly  circumscribed  by  the  evident 
desire  of  the  courts  to  support  the  limitations 
over,  in  some  cases  of  wills,  as  an  executory  devise, 
so  as  not  to  defeat  the  remainder.  In  this  effort 
the  courts  made  a  distinct  departure  from  the  for- 
mer common  law;  and  in  order  not  to  effectuate 
the  statute  to  its  literal  extent,  they  held  that  cer- 
tain -words,  before  creating  an  estate  taU,  did  not 
now  create  an  estate  tail,  which  would  have  been 
converted  into  a  fee  in  the  first  taker,  and,  there- 
fore, that  the  limitation  over  on  the  death  of  the 
first  taker,  without  issue,  was  good  as  an  execu- 
tory devise.  (IJohns.,  440;  3  id.,  292;  11  id.,  337; 
16  id.,  382,  Medcef  Eden's  case.) 

Prior  to  the  Revised  Statutes  socage  lands  might 
be  rendered  inalienable  for  an  uncertain  period  by 
vesting  the  title  to  them  on  contingencies  after 
the  creation  of  a  short  precedent  estate.  By  an 
ingenious  invention  of  the  conveyancers,  through 
the  medium  of  trustees,  to  support  contingent 
remainders,  the  contingent  interests  could  not 
thereafter  be  barred  as  formerly.  Contingent 
remainders  might  be  created  by  any  mode  of 
conveyance.  The  methods  of  rendering  lands 
inalienable  were  by  the  technical  methods  styled 
secondary,  sprintrinsr.  sliifting,  or  future  uses  and 
executory  devises,  and  tliose  known  to  the  chan- 
cery bar  as  expre.ss  tru.sts  in  lands.  Under  the 
extremely  technical  rules  employed,  limitations 
might  be  valid  in  one  instrument,  and  invalid  if 
put  in  another.  The  whole  learning  was  occult, 
and  historically  denoted  the  contest  in  England 
between  the  great  landowners  who  desired  to  per- 


petuate their  estates,  and  the  commons  who  de- 
sired to  render  real  property  merchantable  and 
alienable  and  to  avoid  perpetuities.  In  the  course 
of  this  conflict,  whenever  ParUament  passed  a  re- 
medial act,  the  nohlease  de  la  robe  of  England, 
with  the  assistance  of  the  Aristotelian  logic  and 
the  Court  of  Chancery,  invariably  defeated  the 
full  extent  of  the  remedy.  Covered  with  scholia, 
and  known  to  only  the  most  intellectual  members 
of  the  bar,  the  English  law  of  real  property  was 
in  practice  a  very  labyrinth  delightful  only  to  its 
guardians,  although  it  had  become  by  1826  very 
systematic  and  greatly  improved.  In  this  year 
tlie  New  York  law  of  real  property  had  theoreti- 
cally attained  to  the  same  advanced  stage  of  de- 
velopment as  that  of  England.  It  was  capable  of 
becoming  a  horrible  burden  for  the  new  State, 
and  when  the  young  revisers  approached  their 
task,  the  black-letter  lawyers,  who  had  learned  a 
recent  lesson  in  the  constitutional  convention  of 
1821,  made  little  or  no  effectual  outcry  against  the 
reforms  proposed. 

Having  very  briefly  and  inadequately  intimated 
the  condition  of  the  land  law  of  New  York  when 
the  revisers  approached  it,  we  may  now  assume 
that  it  was  substantially  the  English  law  relative 
to  the  English  tenure  in  free  and  common  socage 
as  modified  by  a  few  statutes  of  the  province 
which  had  become  singularly  inaccessible,  or  had 
fallen  into  disuse.  Premising  that  the  revisers 
procured  the  repeal  of  all  the  province  statutes 
(Subdivision  4.  Sec.  554,  c.  21,  Laws  of  1828),  the 
Revised  Statutes  declared  that  the  people  of  the 
State,  in  their  right  of  sovereignty,  possessed 
the  original  and  ultimate  property  in  and  to  all 
lands  within  the  jurisdiction  of  the  State.  Es- 
cheats were  made  to  follow  this  ultimate  proprie- 
torship, though  all  lands  were  declared  allodial.  It 
has  been  argued  by  very  learned  lawyers  that,  as 
long  as  escheats  survived,  this  change  effected  no 
substantial  reform,  and  that  the  very  terminology 
of  the  Revised  Statutes  involved  the  entire  ante- 
cedent law  relating  to  the  socage  tenure.  Although 
this  is  logically  true.  1  ho  real  changes  effected  miti- 
gated the  rigor  of  thi'  (•(nunioii  law  of  escheat  by 
pro\n(ling  that  escheated  huuls  should  be  subject 
to  the  same  trusts  and  encumbrances  which  they 
would  have  been  subject  to  had  such  lands  not  es- 
cheated. The  revisers  retained  the  rights,  pow- 
ers, and  duties  of  socage  guardians,  but  vested 
them  in  a  different  class  of  persons,  wisely  chang- 
ing the  common-law  rule  that  the  guardianship 


Ill':  iti:N(  i[   AM 


IJf) 


tuitics,  lOvcn  coiirm^n'iicics  (l(>iil)I(',  trcldr,  or  irumiruM,  |.ii.li;il>lr  m- 
iiiiprobiiblc,  iiii,t;lil,  il'  ''"'V  did  iiol  cause  a  iK-i-pct  uity,  In-  the  hasis  of 
limitutioiis. 

Other  clumges  in  tho  uiitoccdcut  law  wci-c  iiiadf  l)y  Article  1  of 
Title  2,  Cluipter  1  of  Part  II.' 

Enough  has  boon  said  to  indicate  tho  scope  of  tho  ohaugo  effected 
by  the  revisers.  While  the  work  as  a  whole  i)urportod  to  be  a  re- 
vision of  existing  laws,  the  term  "revision"  covered  a  multitutle  of 
reforms,  and  niodilit>d  large  jiarts  of  the  common  law  declared  to  be 
part  of  tho  law  of  tho  State  by  the  constitutions  of  1777  and  1821. 

Tho  modifications  which  the  revisers  made  in  legal  estates  in  lands 


shall  bflonK  to  tho  next  of  kin  to  whom  the  inher- 
itanoe  couUl  not  by  any  possibility  descend,  so  as  to 
enable  near  relations  to  become  fruardians  of  the  in- 
fant possessors  of  lands.  'I'lie  wisdom  of  the  <Mni- 
luondaw  rule  had  been  impeached  lonj;  before  by 
Lord  Chancellor  Macdeslield.  In  Article  2  of  Part 
II  of  the  Revised  Statutes,  tho  revisers  saw  fit  to 
perpetuate  the  rule  of  tho  common  law,  founded 
entirely  on  feudal  reasons,  that  only  citizens 
should  hold  lands  within  the  State,  though  they 
modified  the  rigor  of  tho  rule  somewhat  in  favor 
of  persons  about  to  become  citizens.  The  wisdom 
of  retaining  any  part  of  tho  disability  in  question 
may  be  doubted  at  this  day,  when  iand  has  be- 
come merchantable  property,  and  tlie  duties  of  its 
owners  to  the  State  do  not  differ  from  those  of  tho 
owners  of  personalty. 

Tho  second  title  of  Chapter  II  introduced  the 
most  considerable  changes  in  the  law  of  real  prop- 
erty. The  revisers,  however,  retained  the  estab- 
lished tenns  defining  the  quantity  of  interest 
persons  might  have  in  immovable  property,  al- 
though in  some  instances  they  converted  particu- 
lar terms  from  species  to  genera :  the  force  of  the 
term  remainders  was  extended  so  as  to  include 
future  and  contingent  uses,  as  well  as  contingent 
remainders.  Notwithstanding  the  abolition  of  ten- 
ures, every  estate  of  inheritance  continued  to  be 
designated  either  a  fee  simple,  or  a  fee  simple  ab- 
solute, thus  preserving  the  former  distinction  be- 
tween Umlted  or  conditional  fees  and  fees  absolute 
at  common  law.  The  statute,  first  passed  in  1782, 
converting  estates  tail  into  fee  simple,  was  reen- 
acted,  but  the  revisers  remedied  the  hardship  of 
the  original  statute  by  which  a  remainder  limited 
upon  an  estate  tail  was  cut  off,  even  though  the 
first  taker  or  tenant  in  tail  died  without  issue 
living  at  his  death. 

One  of  the  most  considerable  changes  in  the 
antecedent  law  effected  by  the  Revised  Statutes, 
related  to  the  period  dtiring  which  the  power  of 
alienation  might  be  suspended.  The  common-law 
period  was  reduced  from  any  number  of  lives  in 
being,  and  an  absohite  term  of  twenty-one  years, 
and  a  fraction  for  gestation,  to  two  lives  in  being ; 
but  the  Revised  Statutes  jiermitted  a  valid  contin- 
gent remainder,  to  take  effect  in  case  this  second 
life  die  before  attaining  majority,  or  the  estate 
was  determined  in  any  other  way  before  the  ma- 
jority of  the  second  life.  This  "reform,  though 
apparently  slight,  was  really  a  considerable  inno- 
vation; lives  alone  became  the  standard  of  sus- 


pension, and  no  absolute  term,  not  even  a  day  or 
an  hour,  might  intervene.  The  new  period  of  sus- 
pension now  amounted  to  the  longest  of  two  live* 
in  being,  and,  in  a  single  case  of  actual  infancy, 
the  period  of  minority  in  addition.  At  a  subse- 
quent judicial  interpretation  of  this  new  rule  in 
which  they  took  piut,  the  revisers  do  not  seem  to 
have  been  entirely  clear  as  to  what  the  exact  ob- 
ject of  the  statute  really  was.  In  the  leading  case 
of  Coster  v.  Lorillard,  they  argued  that  the  new 
rule  ought  to  be  applied  to  executory  limitations 
of  a  contingent  character  only,  and  not  to  vested 
remainders  which  did  not  suspend  the  power  of 
alienation.  The  court  of  last  resort,  as  it  was  then 
composed,  had  a  good  proportion  of  laymen,  and 
the  new  rule  was  ultimately  applied  to  all  future 
estates  in  lands,  vested  and  contingent  alike.  It 
is  diflicult  to  perceive  how  the  court  could  have 
decided  otherwise,  in  view  of  the  section  which 
provides  for  the  acceleration  of  remainders,  in 
all  cases  where  the  estate  is  limited  on  more  than 
two  successive  estates  for  life,  to  persons  in  being 
at  till'  en  atioii  of  the  estate.  Yet  the  other  con- 
stniiiiim  wa-:  stcmtly  contended  for  by  some  per- 
sons iiiiinciit  in  the  legal  profession.  (See  V.-Ch. 
iVIcCoun's  opinion,  5  Paige,  179-198.) 

1  The  famous  common-law  rule  now  associated 
only  with  Shelly's  case  was  abrogated,  and,  ac- 
cording to  the  real  intention  of  the  donor  when 
the  remainder  was  limited  to  the  heirs  of  a  person 
to  whom  a  life  estate  in  the  same  premises  was 
given,  the  heirs,  by  the  Revised  Statutes,  took  as 
purchasers.  The  rule  in  Shelly's  case  had  origi- 
nal reference  in  England  to  the  political  struggle 
against  perpetuities,  and  its  longer  existence  was 
now  rendered  unnecessary  in  New  York  by  reason 
of  the  very  clear  rule  on  the  subject  of  perpetu- 
ities. The  accumulation  of  the  profits  of  lands 
was  controlled  so  as  not  to  permit  a  repetition  of 
Thelluson's  case  (4  Vesey,  221 ;  11  id.,  112) ;  and  as 
the  New  York  law  was  not,  of  course,  affected  by 
the  British  acts  39  and  40  George  III.,  an  en- 
tirely new  provision  was  introduced :  the  revisers 
confined  the  accumulation  of  the  profits  of  lands 
to  the  single  case  of  an  infant  owner  or  beneficiary, 
and  tolerated  it  in  no  other  case.  Many  other 
minor  provisions,  confirming  the  general  scheme 
of  the  statute,  were  revised  and  incorporated  by 
the  revisers  in  the  revision ;  but  in  a  general  com- 
mentary on  the  subject  it  is  impossible  to  refer 
to  all  of  them. 


146  HISTORY    OF   THE   BENCH   AND   BAR   OF   NEW   YORK 

having  been  noticed,  we  may  point  out  some  of  the  changes  which 
they  instituted  relative  to  uses  and  trusts,  cognizable  in  the  Courts 
of  Equity  of  New  York  from  the  inception  of  the  English  rule. 
Although  prior  to  the  Revised  Statutes  the  exigencies  of  society  here, 
as  fortunes  wei-e  then  more  limited,  had  not  made  any  very  great  de- 
mands on  the  English  law  of  trusts,  yet  by  reason  of  the  constitu- 
tional definition  of  the  fundamental  law  of  New  York,  the  English 
law  of  uses  and  trusts  was  assumed  to  be  in  full  force  and  vigor 
in  the  State.  It  was  in  consequence  open  to  like  objections,  which 
prior  to  the  Revised  Statutes  had  been  very  fully  discussed  in  Eng- 
land by  an  advanced  thinker,  a  barrister  of  Lincoln's  Inn,  Mr.  Hum- 
phreys, who  had  outlined  a  scheme  of  reform  of  the  socage  tenure, 
and  made  some  very  practical  suggestions.  Our  revisers  certainly 
had  the  benefit  of  his  scheme,  though  they  did  not  always  follow  it 
to  its  logical  conclusion,  with  diverse  opinions  as  to  the  result.  The 
law  of  uses  and  trusts  had  grown  up  in  England  from  a  species  of  in- 
direct legislation,  sometimes  called  the  English  jus  Iwnorarium  from 
its  likeness  to  the  pretorian  legislation  of  Rome.  The  reforms  in  the 
branch  of  the  New  York  law  contemplated  by  the  revisers  were 
materially  assisted  by  the  popular  hostility  to  the  extended  judicial 
power  of  the  chancery,  already  noticed.  The  Statute  of  Frauds'  had 
put  an  end  to  secret  trusts,  and  required  all  trusts  in  lands  to  be  in 
writing;  and  subsequent  to  this  the  learning  on  this  subject  had  be- 
come fairly  systematic.  The  Revised  Statutes  abolished  all  charitable 
and  pious  uses  and  all  simple  or  passive  trusts,  and  saved  only  four 
classes  of  active  or  special  trusts,  called  "  the  statutory  trusts."  ^  Most 
of  the  former  active  trusts,  however,  survived  the  revision  as  powers 
in  trust,  while  some  former  trust  powers  were  enumerated  as  express 
trusts.* 

The  scheme  of  the  reform  intended  was  the  abolition  of  all  passive 
trusts  in  lands,  the  restriction  of  the  lawful  special  trusts  to  fewer 
purposes,  the  abolition  of  secret  resulting  trusts  in  favor  of  persons 
paying  the  consideration,  and  lastly  to  cause  the  legal  title  to  devolve 
according  to  the  canon  of  descents  in  a  greater  number  of  instances 
than  formerly.  In  the  application  of  the  revisers'  scheme  to  the  ac- 
tual work  of  revision,  many  minor  sections  contribute  to  the  result.  In 
the  aboHtion  of  former  trusts  several  things  were  to  be  accomplished, 
such  as  the  consistent  devolution  of  the  legal  title  in  cases  where 
formal  or  other  unlawful  trusts  were  attempted  to  be  created  or  then 
existed.  Every  avenue  for  a  continuance  of  formal  trusts  was  skil- 
fully closed  by  the  revisers,  and  in  cases  where  the  special  trust  pur- 
pose was  converted  into  a  statutory  power,  it  was  provided  that  the 
legal  title,  as  it  was  not  a  necessary  adjunct,  should  pursue  that  line 

1 29  Car.  II.  2  2  N.  Y.,  307.  3  12  N.  Y.,  403. 


IMsroK'V    OF     IIIK    HKNCII     AM»    llAi;    nl      M  U     ^(.|;K  1-17 

of  devolution  it  would  liavo  pursui'd  had  IIicit  I. ecu  no  "].ow<'r" 
alloctinj^  it.  l*'oi'  ;d>undant  cunt  ion  all  cxocuted  uses  in  possession 
were  eonfirnied  so  that  the  revised  statutes  of  uses  and  trusts  should 
not  bt*  retroactive.  Tho  adjective  law  of  trusts  was  not  alTected  \>y 
this  article  of  the  revision  ;  it  naturally  belonged  to  a  more  extensive 
work,  which  should  inchuh^  pi'oceduic. 

The  revisers  luid  not  only  to  effect  the  i-efornis  mejitioned,  but  they 
had  to  harmonize  the  revised  laws  of  uses  and  trusts  witli  th(>  nsvised 
laws  concerning  le^al  estates;  for  the  revision  preserved  thos<!  distinct 
conceptions  of  proi)erty  which  the  antinomy  of  the  En<^lish  jui-idical 
system  had  introduced  here  ' 

The  revisers  had  to  some  extent  contemplated  the  destruction  of 
the  former  analojyy  between  legal  and  ecjuitable  estates  in  lands. 
They  provided  that  the  cestui  que  trust  should  no  longer  take  an 
estate  in  lands,  and  converted  his  right  into  an  equitable  interest 
enforceable  in  chancery.  This  was,  however,  a  verbal  rather  than  a 
substantial  change;  but  in  view  of  that  clause  of  the  Revised  Statutes 
preventing  anticipation  by  the  beneficiary  intei-ested  in  a  trust  for  the 
receipt  of  the  rents  and  profits  of  lands,  it  certainly  seemed  logical  to 
term  such  a  beneficiary  right  an  "  interest,"  and  not  an  "  estate";  for  a 
right  that  is  not  assignable  bears  little  similarity  to  an  estate  which 
is  nomen  coUcdumm,  including  the  right  to  dispose  of  it.  In  some  other 
respects  there  is  no  longer  a  perfect  analogy  between  the  natures  of 
legal  and  equitable  estates  in  lands.  Legal  life  estates  must  be  lim- 
ited to  persons  in  being,  but  trusts  will  inure  to  the  benefit  of  per- 
sons not  in  being  when  the  trust  is  created.'- 

Whether  on  the  whole  any  great  reform  in  the  former  law  of  trusts 
has  been  produced  by  the  Revised  Statutes,  is  an  open  question.  A 
new  learning  of  trusts,  founded  on  the  revision,  has  certainly  arisen, 

1  In  English  jurisprudence  the  distinct  concep-  ogry  between  legal  and  equitable  estates  in  land, 

tions  of  legal  and  equitable  interests  in  property  Limitations  beyond   the  legal  trust  period  were 

were  soon  discovered  to  be  artificial,  and  a  ten-  now  vitiated  by  statute.     9  N.  Y.,  403. 

dency  to  assimilate  the  two  distinct  interests  be-  2  As  the    Revised  Statutes  restricted  anticipa- 

gan.     This  reactionary  tendency  ultimately  pro-  tion,  many  difficult  questions  involving  the  jus 

duced    striking    analogies    between    legal    and  dhpomiid i  of  an  equitable  estate  (e.  <7.,  8  N.  Y.,  9) 

equitable  estates.     An  equitable    tenant  in   tail  ceased,  although  others,  perhaps  as  difficult,  have 

could  even  alien  his  equitable   interest  by  fine,  succeeded  them.     Attempts  to  reach  what  is  obvi- 

and   the  courts  talked   gravely  about  the  seizin  ously  a  property  right — the  interest  of  a  cent  id 

and  deseizin  of  equitable  estates.     Subsequent  to  que  trust  in  a  permanent  trust  for  the  receipt  of 

the  Revised  Statutes  some  attempts  to  revive  the  the  rents  and  profits  of  lands— have  from  time 

former    analogy    between    legal    and    equitable  to  time  been  attended  with  many  embarrassments, 

estates    were    made,     ^^^ly.    it    was    reasonably  owing  to  the  change  in  the  law  (31 N.  Y.,  9  ;  35  id., 

asked,  should  the  rule  concerning  the  limitation  of  361;  70  id.,  270). 

legal  estates  now  differ  from  the  rules  concerning  The  estate  which  the  trustee  took  in  all  cases  of 

equitable  estates  or  interests  in  lands  ?    In  cases  valid  express  tnists  —  thougli  apparently  enlarged 

wliere  a  remainder  in  a  legal  estate  was  limited  by  the  Revised  Statutes,  which  declare  that  the 

on  more  than  two  lives  in  being,  such  remainder,  trustee  shall  be  vested  with  tlie  whole  estate,  in 

by  the  section  accelerating  remainders,  was  pre-  law  and  in  equity,  subject  only  to  the  execution 

served.    Why  should  this  not  be  the  rule  where  a  of  the  trust  —  was  in  reality  not  extended  at  all. 

perpetuity  by  way  of  trust  was  created  antece-  As  before  the  Revised  Statutes,  the  trustee's  legal 

dent  to  the  remainder  ?  But  the  courts  intimated  estate  was  commensurate  with  the  trust  duty  to  be 

that  the  Revised  Statutes  had  destroyed  any  anal-  performed  ;  and  when  the  duty  was  performed. 


148  HISTORY   OF   THE   BENCH    AND   BAR   OF   NEW   YORK 

and  the  present  law  of  uses  and  trusts,  now  as  formerly,  is  to  be 
found  in  reported  cases  rather  than  in  a  statutory  form.  In  the  hands 
of  skilful  conveyancers,  real  property  continued  susceptible  to  very 
subtle  modifications  and  limitations.  Whether  this  is  a  healthy  con- 
dition of  the  laws  of  real  property,  it  is  for  the  hustings  and  for  our 
statesmen  to  determine.  Any  of  us  is  entitled  to  the  opinion  that  it 
were  better  had  the  revisers  gone  farther.  It  is  not  an  interference 
with  the  rights  of  property  to  abridge  a  power  of  testamentary  dis- 
position, and  to  destroy  the  power  of  accumulating  overgi-own  or 
ill-gotten  fortunes  by  means  of  trusts.  But  on  the  whole  the  reforms 
in  the  land  law  of  New  York  conduced  to  simplicity  and  were  a  sound 
reform.  They  have  created  a  new  learning  founded  on  the  statute, 
but  a  learning  much  simpler  than  the  old,  yet  on  the  whole  still 
susceptible  of  great  improvement  in  the  future.  Such  obscurities  as 
those  relating  to  lineal  and  collateral  warranties  ceased  by  their  abo- 
lition. Landed  property  was  rendered  easily  subject  to  the  payment 
of  debts.  The  canon  of  descents,  and  many  other  matters  relating 
to  real  estate,  were  modernized  and  improved.  Among  the  more  im- 
portant reforms  embodied  in  Part  II  of  the  Revised  Statutes,  were 
those  concerning  the  law  of  wills,  which  the  revisers  reduced  to  much 
simplicity.  The  laws  relating  to  marriage  in  New  York  were  in  great 
confusion  prior  to  the  Revised  Statutes.  This  evil  was  also  corrected, 
and  the  law  made  plain  and  certain ' 

Part  III  of  the  revision,  relating  to  the  courts  of  justice,  was 
generally  declaratory,  and,  while  of  great  practical  utility,  introduced 
fewer  novelties  than  the  other  parts  by  reason  of  the  limitations  im- 
posed by  the  constitutions  on  this  subject.     Part  IV,  relating  to 

eo  instanti,  the  trustee's  estate  ceased  (3  N.  Y.,  to  recognize  such  distinct  interests,  notwithstand- 

525;    43  id.,  363),  and  oftentimes,  by  virtue  of  ing  the  subsequent  abolition  of  the   distinction 

the  statute,  instantly  devolved  upon  the  person  between  the  remedies  correlated  to  these  distinct 

entitled  to  the  next  estate  (3  N.  Y.,  535;  7  id.,  rights. 

571;  10  id.,  268;  34  id.,  555),  though  in  some  cases  'There  has  been  some  discussion  concerning 
a  trustee  might  still  be  compelled  to  execute  con-  the  principal  authorship  of  the  first  three  chapters 
veyances  to  the  next  eventual  owner,  just  as  the  of  Part  II,  involving  the  leading  changes  made  in 
donee  of  a  power  in  trust  might  be.  {In  arguendo,  the  land  law  of  the  State;  but  the  general  opinion 
24  N.  Y.,  15.)  of  those  most  familiar  with  the  subject  —  an  opin- 
The  revisers  made  a  radical  change  in  the  devo-  ion  borne  out  by  the  journals  and  legislative  rec- 
lution  of  the  legal  estate  on  the  death  of  trustees.  ords  — is  that  Messrs.  Spencer  and  Duer,  in  the  or- 
Prior  to  the  Revised  Statutes  the  trustees  might  de-  der  named,  were  the  responsible  authors  of  these 
vise  the  legal  estate,  or  it  might  descend  to  their  great  changes.  But  they  did  not  stop  here.  We 
heirs  cloaked  in  the  trust.  But  this  inconvenient  know  that  Mr.  Spencer  carefully  considered  the 
rule  was  wisely  changed  so  that  on  the  death  of  a  scope  of  the  entire  revision ;  for  with  his  own  hand 
trustee  the  legal  estate,  in  all  cases,  passed  to  the  he  wrote  a  commentary  for  the  ''  Ontario  Messen- 
appropriate  court  of  judicature,  possessing  chan-  ger,"  pointing  out  the  principal  alterations  made 
eery  jurisdiction.  (44  N.  Y.,  249.)  This  canon  of  by  the  revisers  in  the  common  and  statute  law  of 
descents,  if  it  may  be  so  termed,  had,  however,  no  the  State.  As  Mr.  Duer  was  the  oldest  of  the  re- 
application  to  trusts  ex  mahficio.  (14  Wend.,  176.)  visers,  being  forty-three  years  of  age,  while  Mr. 
The  Revised  Statutes  made  no  change  in  the  Spencer  was  thirty-seven  and  Mr.  Butler  twenty- 
equity  power  of  the  chancellor  to  remove  trustees  nine,  the  presumption,  in  the  absence  of  proof 
for  cause.  The  peculiar  distinction  between  equi-  positive,  is  in  accord  with  tradition  and  the  indi- 
table  and  legal  interests  in  property  not  having  cations  of  the  public  documents,  which  are  cor- 
been  abolished, —  even  if  its  abolition  were  pos-  roborative. 
Bible,— the  courts  have  been  obliged  to  continue 


IllSldllV    OK    'llIK    ItCNCII     AM)    I'.AK    (»!•     M;\\      VdltK  Ml) 

criiiiiiial  law,  iiicludiiiji:  ii  wliolc  sclifiiir  (»!'  puiiisliinriil  and  |»iis<)ii  <lis- 
c'ipliiio,  was  very  cuini»rehoiisivo  in  its  cluiructt'r.  W'liilu  most  oi"  tlio 
j)rovisioiis  of  tlio  criininal  (hxIo  wen;  taken  from  tlit;  fornuM-  Htututos 
of  tlio  Stuto,  some  suggestions  touching  tho  jKMial  law  ■w(!re  adopted 
from  Livingston's  Justly  celebrated  ''System  of  Penal  Law  for  Loui- 
siana," and  sonu>  from  the  newi>r  English  reformatory  acts  inti'oduced 
by  Mr.  Peel,  but  never  in  force  in  New  York.  That  portion  of  Part 
IV  wiiicli  relates  to  prison  discipline  may  be  said  to  have  introduced 
too  few  of  tho  humane  reforms  which  had  even  then  been  recom- 
mended by  Edward  Livingston  of  Louisiana,  who  was  much  impressed 
with  the  suggestions  of  Jeremy  Bentham,  the  gi'oat  master  of  the 
philosophy  of  legislation.  The  revisers  announced  themselves  as 
quite  satisfied  with  the  old  system,  and  evidently  were  not  impressed 
by  the  advanced  speculations  of  the  theoretical  writers.  Li  this  sin- 
gle respect  the  Revised  Statutes  of  New  York  were  notably  faulty. 
Several  notes  to  the  text,  containing  a  brief  outline  of  the  changes 
wrought  by  the  Revised  Statutes,  have  been  inserted  because  such  re- 
vision constitutes  an  epoch  in  the  law-making  of  the  State.  While 
they  purported  to  be  a  revision  of  old  laws,  they  were  more.  After 
they  were  enacted,  all  the  former  laws  of  the  old  province  made  part 
of  the  fundamental  law  of  the  State  by  the  constitutions  of  1777  and 
1821  were  also  repealed.  Thenceforth  the  corpus  juris  of  New  Y'ork 
consisted  only  of  the  statute  law  of  the  State  (the  English  statutes 
having  been  previously  recast  and  the  residue  repealed),  and  the 
common  law  of  England,  as  previously  received  and  interpreted  under 
the  province  and  State  governments ;  but  even  this  was  declared  by 
the  constitution  to  be  subject  to  such  alterations  as  the  legislature 
should  make  in  it.  That  the  legislative  power  to  alter  included  the 
most  sovereign  power  of  change  was  not  doubted.  What  the  Revised 
Statutes  best  demonstrated  was,  that  the  common  law  of  English- 
speaking  States  and  origin  was  susceptible  of  important  statutory 
modifications  without  the  desti-uetion  of  those  essential  principles  of 
growth  which  had  been  unfolded  in  the  course  of  the  history  of  the 
English  nation,  and  that  such  changes  could  be  made  by  the  ordinary 
legislative  machinery  without  a  catastrophe  to  the  body  politic.  Thus 
the  revision  destroyed  the  fetish  of  the  common  law,  while  it  showed 
that  the  law  itself  was  not  elusive;  and  it  pointed  the  way,  followed 
in  many  other  States,  to  important  changes  in  the  private  jural  rela- 
tions of  America.  Through  it  subsequent  changes,  not  yet  foreseen, 
were  involved  and  made  easy,  while  the  dead  law  of  the  past  was 
rendered  the  servant  and  not  tl«3  master  of  the  State.  Though  per- 
haps too  frequently  and  often  unskilfully  amended,  the  Revised 
Statutes  of  1829  may  be  said  to  be  still  the  chief  source  of  the  statute 
law  of  the  State. 


150 


IIISTOEY   OF   THE   BENCH    AND   BAR   OF   NEW   YORK 


While  the  constitution  of  1821  declai-ed  that  the  common  law  in 
force  in  the  colony  on  April  19,  1775,  should  continue  to  be  the  law 
of  the  State,  it  did  not  abrogate  the  small  residuum  of  the  ancient 
Dutch  law  left  standing  by  that  postulate  of  the  common  law  which 
gives  effect  to  the  laws  of  the  conquered  until  abrogated.^  Yet  this 
portion  of  the  ancient  Dutch  law  was 
very  slender  and  rather  a  rule  of  prop- 
erty: the  burden  of  proof  was  on  the 
proponent  to  show  the  particular  insti- 
tute of  the  Dutch  law  in  force,  as  the 
presumption  was  that  the  common  law 
controlled  in  the  absence  of  such  proof  ."^ 
The  adjudged  cases  give  evidence  of  the 
extent  of  this  slight  survival  of  Dutch 
law.  For  example,  in  1830,  in  the  canal 
cases,  eminent  counsel,  including  the 
attorney-general,  contended  that  the 
Dutch  law  still  determined  the  right  of 
certain  riparian  owners/'  In  1817  even 
Chancellor  Kent,  who,  in  a  desire  to  in- 
voke the  entire  ready-made  system  of 
English  law,  often  ignored  the  differ- 
ences observed  in  the  province  of  New  York,^  held  that  by  the  Dutch 
law  a  grant  to  the  inhabitants  of  Hempstead  constituted  them  a  cor- 
poration.^ Still  later  cases,  such  as  Dunham  v.  Williams,"  have  given 
effect  to  a  particular  rule  of  the  ancient  Dutch  law.  But  the  great 
foundation  of  the  unwritten  or  non-statute  law,  under  the  constitution 
of  1821  as  before,  continued  to  be  the  common  law  received  in  the 
province,  as  altered  by  the  statutes  of  the  State.  What  indeed  was 
technically  meant  by  the  use  of  the  term  "common  law" — a  term 
ambiguous  enough  to  denote  at  times  either  the  jus  non  scriptum  or 
the  entire  particular  jurisprudence  of  England — has  occasioned  much 
consideration  by  the  more  subtle-minded  among  the  lawyers.  On  the 
whole,  the  general  and  vague  definition  in  Morgan  v.  King,^  to  the 
effect  that  it  meant  the  rationale  rather  than  a  particular  institute  of 
English  jurisprudence,  is  the  most  satisfactory.  Yet  so  vague  a  defi- 
nition could  not  be  otherwise  than  an  unsatisfactory  basis  for  the 
common  law  of  a  great  State.* 

We  have  already  noticed  some  of  the  changes  effected  by  the  con- 


1  See  Chapter  XIV,  Vol.  I,  p.  559 ;  Chapter  XIV, 
Vol.  II,  p.  593.    2  Canal  Ca.ses,  5  Wendell,  446. 

;t5  Wendell,  436;  17  WendeU,  571. 

*  See  the  late  B.  F.  Butler's  "  Outline  of  the  Con- 
stitutional History  of  New- York,"  passim, 

5  Denton  v.  Jackson,  2  Johns.  Chancery,  320. 

«37N.  Y.,251. 


7  30  Barb.,  14;  reversed  on  another  point,  ,35 
N.  Y.,  454. 

SThere  is  in  existence  an  old  English  book  called 
"TomUn's  Repertorium  Juridicum,"  which,  as  it 
is  remembered,  contains  a  list  of  all  English  deci- 
sions down  to  the  date  of  the  battle  of  Lexington, 
when  the  English  cases  ceased  to  be  authoritative 


iiisrouv  OK   iiiK  i{i:.\(ii   AM)  itAi;  ok  m;\\    \>>\:k  ir>l 

stilutioii  of  IS'Jl  ill  lli(^  •greater  anioii«,^  I  lie  aiiciciif  couils  of  New 
York.  With  the  ex('c[)tioMs  iridicattMl,  tlicy  continued  snhHtuntially 
as  before,'  but  tiie  cluineellor  and  judges  under  tlie  new  eonslitufion 
owed  tiieir  office  to  the  appointment  of  tii(>  j?overnor  with  tiie  consent 
of  the  senate,  instead  of,  as  formerly,  to  the  council  of  appointment, 
which  this  constitution  al)olish(>d.  In  order  to  prevent  a  n.'iietition 
of  the  odium  fastened  on  the  judj:c*'^  hy  their  State  functions  under 
the  first  constitution,  the  new  constitutiou  provided  tluit  ueithei-  the 
chancellor  uor  the  judj^es  should  liold  any  other  offici;  or  place  of 
public  trust  duriuj^  their  term  of  office.  The  Revised  Statutes  did 
not  attempt  to  define  the  jurisdiction  of  the  Court  of  Chancery  of 
New  York,  which  had  never  been  very  precisely  defined.  The  act 
of  1()83,  which  has  the  credit  of  its  erection,"  gave  it  general  equity 
powers.  The  Revised  Statutes  declared  the  powers  of  the  court  to 
be  vested  in  the  chancellor.  How  far  the  Court  of  Chanceiy  of  New 
Y^irk  was  vested  with  the  ancient  jurisdiction  of  the  English  court 
was  discussed  in  the  year  1810,  in  the  most  interesting  case  of  Y^'ates 
V.  People,''  which  involved  a  conflict  between  the  chancellor  and  the 
Supreme  Court,  and  where  it  was  held  that  the  New  York  Chancery 
possessed  only  those  common-law  powers  of  the  court  which  in  Eng- 
land were  exercised  in  the  officina  justitice,  or  that  part  from  which 
writs  issued  ex  dchito  justitics,  and  that  the  chancellor  of  New  Y'ork 
possessed  the  powers  exercised  by  the  lord  chancellor  in  that  branch 
of  the  English  court  called  the  Court  of  Equity  in  Chancery. 

Under  the  constitution  of  1821  the  powers  of  the  Supreme  Court 
continued  substantially  as  under  the  crown,^  and  the  Revised  Statutes 
declared  this  to  be  the  fact.  The  jurisdiction  of  the  minor  courts  of 
the  justices  of  the  peace  was,  however,  fixed  by  the  Revised  Statutes, 
though  the  courts  themselves  were  ancientl}'  in  the  province.  The 
county  courts  for  common  pleas  also  were  ancient  institutions,  and 
were  only  reorganized  by  the  Revised  Statutes.  In  some  of  the  cities 
of  the  State  the  common-law  jm-isdiction  of  the  justices  and  county 
courts  have  in  this  century  for  convenience  been  distributed  among 
municipal  courts,  such  as  the  Courts  of  Common  Pleas  in  New  York 
city,  or  the  Marine  Court  of  the  city  of  New  York,  which  had  also 
jurisdiction  of  ci\'il  actions  brought  by  seamen.  The  Court  of  Com- 
mon Pleas  in  the  city  of  New  Y^ork  is  one  of  the  most  ancient  of  the 
tribunals  of  the  State.'  The  Superior  Court  of  the  city  of  New  Y^ork 
was  erected  in  1828,  to  have  cognizance  of  local  actions."^  It  owed  its 
establishment  to  the  long-protracted  conspiracy  cases  which  grew  out 

here,  and  our  ovm  courts  took  up  tlie  ampliflca-  4 Graham's  "Courts  of  New  York,"  p.  141  (edi- 
tion of  the  common  law.  tion  of  1S39). 

>  ChaptiT  XIV,  Vol.  II,  Memorial  History.  5  See  Chapter  XTS',  Vol.  I.  p.  551 ;  Chapter  XIV. 

'  1    Hoffman's    "  New    York    Chaucery    Practice,"  Vol.  II.  p.  595. 

Chapter  1.  6  Laws  of  1828.  p.  141,  c.  137 ;  3  Revised  Statutes, 

5  6  Johns.,  33T.  261. 


152        HISTORY  OF  THE  BENCH  AND  BAR  OF  NEW  YORK 

of  the  heavy  bank  failure  in  the  city  of  New  York  in  1826,  and  clogged 
the  calendars  of  the  Court  of  Common  Pleas.  Its  jurisdiction  was 
statutory,  and,  unlike  that  of  most  of  the  other  courts  of  New  York, 
was  not  defined  by  a  cross-reference  to  some  established  jurisdiction 
of  a  common-law  court  of  England.  Under  the  second  constitution, 
as  under  the  first,  the  court  for  the  trial  of  impeachments  and  cor- 
rection of  errors,  constituted  in  the  upper  legislative  house,  like  the 
old  Court  of  Appeals  in  the  province  of  New  York,  had  supreme 
appellate  jurisdiction  in  both  law  and  equity. 

Under  the  constitution  of  1821  the  practice  in  all  the  courts,  both 
in  law  and  in  equity,  remained  substantially  that  of  England,  but  with 
many  local  variations  which  had  grown  up  under  the  crown  govern- 
ment of  New  York,  and  which,  if  separately  studied,  proved  very 
interesting  phenomena.  Singularly  enough,  under  the  State  govern- 
ment there  was  a  tendency  among  the  judges  to  obliterate  these  dis- 
tinctions which  had  grown  up  in  the  province,  for  to  follow  ancient 
precedents  is  easier  than  to  follow  innovation.  The  Revised  Statutes 
did  not  reform  the  practice :  they  systematized  many  of  the  old  statutes 
of  New  York  relative  to  jeofail  practice  and  proceedings,  and  embodied 
some  new  provisions  relative  to  the  limitations  of  actions  in  the  courts 
of  justice,  but  no  great  reform  in  practice  was  effected  until  after  the 
constitution  of  1846.  The  changes  made  in  the  judicial  establishment 
by  the  constitution  of  1821  were  not  sufficient  to  accomplish  much 
good.  In  the  course  of  a  few  years  the  complaints  concerning  the 
delay  and  expense  in  legal  proceedings  became  so  general  as  to  serve 
as  influential  reasons  for  the  reforms  instituted  by  the  succeeding 
convention,  called  in  1846.  The  new  circuit  judgeships,  created  by 
the  constitution  of  1821,  proved  in  the  end  unsatisfactory  to  the  peo- 
ple, because  of  the  disposition  evinced  by  suitors  to  review  all  their 
decisions  before  the  Supreme  Court  in  banc. 

After  so  great  a  change  in  the  form  of  the  law  as  that  involved  in 
the  Revised  Statutes,  the  statute-books  of  the  State  for  some  years 
showed  a  cessation  of  legislative  activity.  Some  few  rigid  rules  of 
the  common  law,  relative  to  the  non-assignability  of  certain  rights  of 
action  or  to  commercial  paper,  were  modernized.  In  1831,  however, 
the  arrest  and  detention  of  the  debtor's  body  in  civil  actions  was 
abolished  by  the  Stilwell  Act,  although  this  monstrous  remedy  had 
been  retained  in  1829  by  the  revisers  of  the  statutes.  The  material 
development  of  the  State,  the  founding  of  cities,  banks,  schools,  turn- 
pike and  industrial  companies,  occupied  the  larger  share  of  the  atten- 
tion of  the  law-makers  for  some  years  after  the  Revised  Statutes. 
This  was  not  unnatural,  for  between  the  years  1830  and  1845  the  popu- 
lation of  the  State  had  increased  from  1,918,608  to  nearly  2,700,000. 
The  completion  of  the  Erie  Canal  in  1825  had  altered  the  relation 


IIISIOKV    <»!•'    TIIK    HKNCII    A.M>    llAi:    (U      m:\\     ^iu:k  !.).{ 

oftht"  stale  to  tlir  coiimu'ivc' ofllic  ,i,nc;it  West;  ami  hy  \s:\]  tli.-c..ii- 
struclioJi  of  steam  railways  had  added  mw  I'orees  to  the  ei\ili/,at  ion 
and  dovcloi)iiuMit  of  tho  State. 

From  ISlil  to  1S4G  tlio  const  it  id  ion  of  the  Stati;  undervv(;id  few 
orjjunic  changes  or  umeiuhniMds.  Jn  18'J()  tho  oHiee  of  justiccs.s  of  the 
pouc'O  had  been  made  oloetivo.  In  ]KV,l  tho  francliise  for  oleetivo 
oliicors  was  conferred  on  all  white  male  citizens  inhabitin*;:  tiu;  State 
cue  year  precedinjjj  an  election.  Tli(»  disability  of  those  of  African 
descent  continued  as  before.  lu  18135  and  1837  the  office  of  mayor 
ill  all  the  cities  of  the  State  was  made  elective,  and  ceased  to  b(! 
appointive.  With  these  exceptions,  the  constitution  of  1821  stood 
uuaft'ected  by  chant^e  until  the  year  184G. 

Between  tho  years  1821  and  184(5  immi<i:ration  had  aln^ady  intro- 
duced into  this  commonwealth  a  very  large  number  of  persons  of 
foreign  birth.  While  such  constant  migrations  of  strangers  into  a 
cultivated  and  industrious  community  was  reciprocally  highly  advan- 
tageous from  an  economic  point  of  view,  it  no  doubt  temporarily 
complicat(>d  civil  government  to  some  extent.  The  new-comers,  easily 
transmuted  by  naturalization  into  citizens,  and  having  abandoned  the 
restraints  of  their  old  homes,  were  attracted  by  those  politi(!al  doctrines 
which  were  most  nov^el  to  them,  and  which  savored  of  the  most  abso- 
lute equality,  being  opposed  to  centralization  and  privilege,  or  in 
short  to  the  older  institutions  perpetuated  to  some  extent  by  the 
State  constitutions  of  1777  and  1821.  Thus  the  foreign  element  of 
the  population  of  New  York  swelled  the  ranks  of  those  of  our  citizens 
who  were  opposed  to  the  State  constitution  as  it  existed  down  to  the 
year  1845.  By  1845  the  balance  of  political  power  had  about  shifted 
from  the  rural  districts  to  tho  growing  towns,  and  the  political  dis- 
content was  promoted  by  those  in  the  cities  who  favored  a  redistribu- 
tion of  representation.  Yet  the  persons  so  opposed  to  the  ancient 
order  of  things  were,  perhaps  independently  of  those  of  foreign  birth, 
in  the  majority.  Many  causes  had  contributed  to  this  disaffection; 
notably  the  permanent  judicial  establishment  including  the  Court  of 
Chancery,  the  nature  of  the  land  laws  of  the  State,  and  the  loose  con- 
dition of  the  State  debt  and  finances  occasioned  by  the  great  public 
works  undertaken.  The  indiscriminate  grants  of  lands  already  noticed 
as  taking  place,  both  before  and  after  the  establishment  of  the  State 
government,  were  now  producing  their  legitimate  results — agrarian, 
social,  and  political  disturbances.  At  different  periods  in  the  history 
of  New  York  similar  disturbances  had  arisen.  It  will  be  recalled  that 
the  landlords  of  the  vast  grafts  of  lands  in  the  interior  of  the  State 
had,  in  accordance  with  the  English  land  law  of  the  pro\dnce,  made 
perpetual  leases  instead  of  granting  estates  in  fee.  Sometimes  the 
leases  were  on  condition  of  rent,  services,  or  of  produce  to  be  rendered 


154  HISTOKY    OF   THP:   bench    and   bar   of   new    YORK 

iu  kind.  The  landlords  had  generally  reserved,  also,  mines  and  water- 
power,  and,  to  preserve  the  character  of  their  estates,  had  restrained 
the  tenants  from  assigning  their  interests  except  on  payment  to  the 
landlords  of  some  portion  of  the  consideration  received  by  the  tenants. 
The  leases  were  full  of  subtle  and  ingenious  covenants  of  distraint 
in  favor  of  the  landlord.  The  great  gi'ants  had  been  protected  by  the 
State  constitutions  of  1777  and  1821.  As  early  as  1811  the  legislature 
had  appointed  Ambrose  Spencer,  John  Woodworth,  and  William  P. 
Van  Ness  to  examine  the  laws  of  New  York  on  this  subject,  and  to 
report  what  reforms  in  the  land  law  could  be  instituted  without  im- 
pairing vested  rights.  A  bill  was  accordingly  introduced  into  the 
Senate,  but  failed  to  become  a  law.  About  this  same  time  the  tenants 
on  the  Clarke  estate  in  various  western  counties  memorialized  the 
legislature  to  investigate  the  title  of  their  landlord,  and  the  whole 
subject  was  referred  to  a  committee  of  which  General  Root  was  chair- 
man. Subsequently  the  manor  of  Livingston  underwent  legislative 
investigation.  In  1813  the  sheriff  of  Columbia  County  was  murdered 
by  the  "anti-renters,"  as  the  uprising  tenants  were  called.  In  1837 
the  settlers  in  many  counties,  occupying  the  lauds  of  the  Holland 
Company,  and  holding  certain  contracts  of  sale  with  forfeiture  clauses, 
destroyed  papers  in  the  land  office  in  Chautauqua  County,  and  an 
armed  multitude  of  them  collected  in  Batavia,  but  were  dispersed  hj 
the  military.  After  the  death  of  the  patroon  in  1839,  it  became  neces- 
sary to  attempt  to  collect  unpaid  rents  on  the  manor  of  Rensselaer- 
wyck.  This  process,  being  resisted,  led  to  the  emplo^Tiient  of  the 
militia  and  a  proclamation  by  Governor  Seward,  when  the  tenants 
consented  to  refer  their  grievances  to  the  legislature.  A  policy  of 
delay  and  official  red  tape  led  to  the  deplorable  scenes  of  1844-5, 
when  the  turbulent  tenants,  arrayed  as  Indians,  committed  various 
agrarian  outrages  and  disturbances.  Anti-rent  newspapers  and  poli- 
ticians sprang  up  to  play  an  important  part  in  the  presidential  canvass 
of  1844,  while  in  some  counties  civil  government  was  entirely  para- 
lyzed. In  the  midst  of  these  serious  disturbances  the  legislature  took 
steps  for  a  constitutional  convention.  Meanwhile  the  civil  authorities 
acted  with  great  propriety  in  their  efforts  to  maintain  law  and  order, 
and  acts  of  assembly  were  passed  enabling  the  governor  to  declare 
martial  law  in  disturbed  counties,  and  making  it  felony  to  rescue 
prisoners,  to  resist  legal  process,  or  to  appear  disguised.  Withal, 
there  was  a  feeling  prevalent  in  the  minds  of  many  disinterested  per- 
sons that  the  lands  of  New  York  had  been  grossly  mismanaged  from 
the  foundation  of  the  English  government  in  1664,  and  that  the 
present  successors  of  the  early  land  speculators  were  now  really  pay- 
ing off  the  moral  debts  of  their  predecessors.  The  agrarian  difficulties 
and  the  natural  growth  of  democratical  doctrines  served  to  increase 


I 


MIS  I 


:y   III'    iiii'!  iii:.\(ii   AM»   itAi:  ok  m;u    nokk 


^^^   ^^^-^ 


thcdissiitislaclion  with  tlic  iiiihnv  of  the  w(,v,.|iiiii.iit  uikI.t  tlic  .■on- 
stitutu)ii  of  1S21,  jukI  ill  ISU  and  lS4r)  steps  w.-ir  tjiUm  inward  a 
constitutional  convent ioii. 

In  tlio  year  184."),  the  mandates  of  tho  constitution  of  ISlM  piosidin;^ 
for  its  anuMidnuMit  luiviiifx  Ix^on  por- 
fornuMl,'  tlu>  (luestion  of  ''constitutiouul 
convention"  or  "no  convention"  was 
submit  tod  to  the  doctors,  and  decided 
in  tlu>  utRrmative  by  a  vote  of  21^5,257 

to  :H>,S(;t). 

On  June  1,  1S4(),  tlie  convention, 
elected  pursuant  to  law  in  April  pre- 
ceding, assembled  at  the  capitol.  It 
embraced  numy  distinguished  citizens, 
including  some  of  the  leading  lawyers  / 
of  the  State,  notably  Charles  O'Conor, 
Churchill  Cambreling,  John  K.  Porter, 
Levi  Chatfield,  Samuel  Nelson,  Samuel 
J.  Tilden,  Henry  Nicoll,  Ambrose  L. 
Jordan,  Ezekiel  Bacon,  Nathan  Wil- 
liams, and  others.  For  the  first  time  in 
the  history  of  political  movements  of  New  York,  the  great  landhold- 
ers of  the  ancient  parts  of  the  State  seem  to  have  been  ignored  by 
the  voters.  The  old  regime  had  obviously  lost  control,  and  new  coun- 
sels were  thenceforth  to  prevail  in  the  State,  founded  on  the  enlarged 
suti'rage  and  on  more  democratic  and  enliglitened  j)rineiples,  or  at  least 
on  those  freer  from  purely  Anglican  traditions  and  customs  inherited 
or  transmitted  by  the  constitution  of  1777.  It  was  obvious  that  a 
large  share  of  the  rural  population  were  no  longer  to  be  obligated 
jby  such  ridiculous  restraints  and  covenants  in  farm  leases  as  "that 
they  should  go  to  the  grantor's  mill  only,"  or  that  they  should  not 
entertain  strangers  over  one  day,  or  that  they  should  set  out  trees  to 
the  number  of ,  keeping  them  replaced  winter  or  summer. 

The  new  constitution  was  formulated  in  fourteen  articles,  much 
discussed,  and  adopted  with  one  exception  by  large  majorities.  Space 
will  permit  a  glance  only  at  their  purport.  The  preamble  repeated  its 
emanation  from  the  people  of  the  State,  while  the  first  article  con- 
tained certain  general  limitations  of  the  powers  of  government  in  the 
shape  of  a  bill  of  rights  and  privileges,  every  sentence  of  which  again 
bore  evidences  of  the  historic  struggle  for  liberty  by  the  English- 
speaking  peoples  in  the  old  and  new  worlds.  Most  of  these  limita- 
tions had  ))een  contained  in  the  earlier  constitutions.  Trial  by  jury, 
religious  liberty,  the  writ  of  habeas  eorpns,  bail  for  accused  persons, 

1  New  York  T>aws.  \Sio.  c.  252. 


156  HISTORY    OF   THE   BENCH    AND   BAR   OF   NEW   YORK 

the  exercise  of  eminent  domain,  freedom  of  speech,  were  each  pro- 
tected by  appropriate  clauses.  Some  old  statutes  reeuacted  in  the 
Revised  Statutes  of  1829,  regarding  tenures  of  real  estate,  were  incor- 
porated in  the  first  article  of  the  constitution,  against  the  general 
protest  of  the  lawyers,  who  thought  them  supererogatory.  All  feudal 
tenures  were  again  declared  abolished,  saving,  however,  all  rents  and 
services.  So  all  lands  were  again  declared  allodial,  but  subject  to 
escheat.  All  fines,  quarter  sales,  or  other  restraints  upon  alienation 
were  again  made  void.  Leases  of  agricultural  lands  for  longer  than 
twelve  years  were  made  void  for  the  future.  All  these  provisions, 
in  so  far  as  they  affected  vested  rights,  were  known  to  be  quite  in- 
operative, and  the  only  really  new  provision  of  importance  was  di- 
rected against  long  farm  leases  in  the  future.  The  old  farm  leases 
which  were  valid  in  their  inception  had  to  be  dealt  with  by  very 
different  modes  from  a  constitutional  referendum.  For  this  reason 
some  of  the  lawyers  thought  that  these  clauses  of  the  constitution 
betokened  insincerity.  The  provisions  as  to  the  land  law,  however, 
had  the  effect  of  making  the  policy  of  the  State,  in  the  future,  very 
clear,  and  of  prohibiting  thenceforth  long  leases  of  farm  lands. 
Even  these  clauses  of  the  constitution  might  not,  however,  have 
proved  effectual  had  not  the  new  methods  of  transportation  acted  as 
auxiliaries  and  made  better  and  cheaper  lands  more  accessible  to  the 
agriculturist;  so  that  the  tenure  of  large  districts  of  farm  lands  of 
New  York  had  to  be  revised  by  the  consent  of  the  proprietors  them- 
selves, through  commutations  and  compromises,  which  naturally  fol- 
lowed the  new  economic  rather  than  the  new  constitutional  conditions. 
Article  II  carefully  regulated  the  right  of  suffrage,  conferring  the  bal- 
lot on  all  white  male  citizens,  in  conformity  to  the  amendment  of 
1826,  already  noticed.  Negroes,  unless  freeholders,  were  still  excluded 
from  the  suffrage,  and  so  remained  until  the  adoption  of  the  fifteenth 
amendment  to  the  federal  constitution,  the  electors  of  the  State  hav- 
ing refused  in  the  years  1846,  1860,  and  1869  to  reheve  them  of  this 
disability.  In  1874,  by  constitutional  amendment,  the  electors,  how- 
ever, removed  the  ban.  Slavery  after  the  year  1827  had  been  abol- 
ished by  a  statute  of  1817,  while  all  persons  were  by  statute  born  free 
in  this  State  after  July  4,  1799.  By  Article  III  of  the  constitution  the 
legislative  power,  vested,  as  theretofore,  in  the  assembly,  was  regu- 
lated. The  senate  was  reduced  to  thirty-two  members  and  the  legis- 
lature to  one  hundred  and  twenty-eight. 

As  space  forbids  following  minutely  the  extensive  alterations  of 
the  fundamental  law  by  the  convention  of  1846,  attention  must  be 
directed  to  the  important  features  only  of  the  new  organic  law.  By 
Article  IV  it  was  provided  that  a  candidate  for  governor  might  be  a 
naturalized  citizen,  and  he  was  no  longer  required  to  be  even  a  free- 


iiisioKv  ov   \\\\:  1!i;n(  11   and  hai;  (U'  \i;u    ^<ii;k  I.')7 

liohlcr.  This  provision  well  iii(liciilc<l  tlic  \<tv  serious  cliuiij^r  wliidi 
public  soutiuuMit  had  uudcr^oiir  in  the  jji-cccdiii^  twenty  years.  Tho 
tinio  whou  property  was  regarded  as  the  easiest  test  of  a  num's  capa- 
city or  res{)ectal)ility  had  passed  a^vvay ;  so  naturalized  t'oreij;ners 
wore  no  longer,  as  a  body,  to  be  d(>pi-ive(l  for  that  i-eason  of  the  sii- 
pronio  honors  of  the  Htate.  Such  chan<^(!s  were  no  doubt  reason- 
ublo,  as  tho  electors  at  largo  might  be  depenihid  on,  without  ailificial 
restrictions,  to  choose  tho  great  State  officers  wisely.  In  other  aiti- 
clos  of  the  constitution  the  general  i)ower  of  appointment  to  public 
office,  vested  by  the  constitution  of  1821  in  the  governor  or  in  the 
senate  and  assembly,  was  given  directly  to  the  people.  Even  judicial 
offices  were  made  elective  without  any  formidable  protest  in  tho  con- 
ventiou.  This  feature  was  not  so  novel  as  it  might  seem,  for  a  major- 
ity of  the  members  of  tho  old  Court  of  Errors  (the  senators)  had  been 
elective  since  the  foundation  of  the  State  government,  and  tho  Court 
of  Errors  had,  on  the  whole,  in  tho  past  proved  more  satisfactory  to 
the  people  at  large  than  the  other  courts  of  record  where  the  judges 
were  appointed.  It  was  well  understood  by  the  convention  of  18-4G 
that  the  people  desired  an  elective  judiciary,  and  were  dissatisfied 
with  the  ancient  appointive  system.  Many  plans  were  suggested  in 
the  convention,  but  nearly  all  favored  a  judiciary  partly  or  wholly 
elective.  Tho  judiciary  article  of  the  constitution  of  1846  made  groat 
changes  in  tho  judicial  organization  of  the  State,  and  was  carried  by 
a  small  majoiity.  A  new  appellate  court  of  last  resort  in  cases  civil 
and  criminal  was  created,  to  bo  called  the  Court  of  Appeals,  and  with 
its  erection  the  old  Court  of  Errors  was  to  disappear.  Four  of  the 
justices  of  tho  now  Court  of  Appeals  were  to  be  elected  for  a  term 
of  four  years,  and  another  four  were  to  be  selected  from  the  justices 
of  tho  Supreme  Court.  Instead  of  tho  old  Supreme  Court  and  Court  of 
Chancery  a  new  Supreme  Court  was  established,  having  general  origi- 
nal jurisdiction  in  law  and  equity.  In  order  to  prevent  centralization 
of  judicial  authority  at  the  capitol,  this  new  court  was  divided  into 
eight  districts,  of  which  the  city  of  New  York  was  one.  Tho  judges 
were  to  be  elected  in  the  districts.  Thus  the  great  court  of  original 
jurisdiction  was  in  this  way  constituted  on  the  basis  of  county  rather 
than  of  State  lines;  the  evident  object  being  to  diffuse  and  not  to 
centralize  judicial  influence  and  responsibility.  With  an  elective 
judiciary  the  district  plan  for  courts  of  original  jurisdiction  was 
inevitable. 

One  of  the  objects  of  the  convention  being  to  reform  the  laws  rela- 
tive to  the  debt,  finances,  and  property  of  the  State,  most  minute 
directions  were  contained  in  the  new  constitution,  and  very  consider- 
able limitations  were  imposed,  in  this  respect,  on  the  powers  of  tho 
legislature.     No  compromises  with  certain  debtors  of  the  State  were 


158  HISTOKY    OF   THE   BENCH   AND   BAE   OF   NEW   TOKK 

to  be  tolerated;  sinking  funds  were  to  be  created;  the  State  salt- 
mines and  canals  were  not  to  be  sold ;  the  State  credit  M^as  not  to  be 
loaned.  Time  has  justified  the  wisdom  of  all  these  limitations.  The 
subject  of  franchises  to  corporations  also  received  attention,  and  it 
was  provided  that  private  corporations  could  not  be  formed  in  the 
future  except  under  general  laws,  subject  to  alteration  at  the  legisla- 
tive will.  In  conformity  with  the  popular  demand,  the  stockholders 
in  such  corporations  were  made  personally  liable  for  debts  in  proper 
cases.  Certain  banking  principles  looking  to  the  security  of  note- 
holders were  fixed  in  the  constitution  itself.  Many  other  minute 
provisions,  some  of  which  may  be  noticed  hereafter,  were  contained 
in  the  constitution.  Thus  the  policy  of  the  State,  touching  certain 
spheres  of  legislative  action,  was  so  fixed  by  the  people  as  to  be  beyond 
the  control  of  the  ordinary  legislative  body.  This  course  was  then 
more  novel  than  it  has  since  become  in  this  country.  On  November 
3,  1846,  the  new  constitution  was  adopted  by  a  vote  of  221,528  to 
92,436.  In  conformity  to  the  terms  of  the  instrument  which  made 
future  amendments  more  easy  than  did  that  of  1821,  the  constitution 
of  1846  has  been  since  amended  in  several  particulars,  but  its  general 
features  remain  undisturbed.  The  policy  of  these  amendments  has 
been  to  reserve  more  of  the  legislative  power  to  the  people,  and 
further  to  limit  the  powers  of  the  legislature.  In  1874  the  term  of  office 
of  the  governor  was  extended  from  two  to  three  years ;  his  powers  as 
chief  magistrate  under  the  constitution  of  1846,  as  amended,  remained 
substantially  as  under  the  former  constitution,  being,  however,  some- 
what more  prescribed  with  each  organic  change.  In  the  year  1858,  a 
proposition  for  a  new  constitutional  convention  was  defeated  by  the 
people ;  but  in  1866,  steps  were  taken,  as  directed  by  the  constitution, 
toward  a  convention,  and  on  April  23,  1867,  delegates  were  chosen 
who  convened  at  Albany,  June  4, 1867.  Among  them  were  many  per- 
sons of  distinction  and  attainment.  Notwithstanding  that  the  popu- 
lation of  the  State  had  increased  from  1,372,111  in  1820  to  nearly 
3,000,000  in  1846,  the  people  evinced  greater  satisfaction  with  the  con- 
stitution of  1846  than  many  had  expected.  The  constitution  framed 
by  the  convention  of  1867  was,  with  the  exception  of  the  judiciary 
article,  defeated  by  a  vote  of  290,456  against,  to  223,935  for,  its  adop- 
tion. By  the  particular  amendment  then  adopted,  some  of  the  city 
courts  were  made  constitutional  courts,  and  thus  freed  from  legisla- 
tive interference.  The  other  changes  were  not  extensive.  The  general 
policy  of  the  constitution  of  1846  in  making  the  great  courts  of  general 
original  jurisdiction  decentralized  or  local  courts,  was,  in  1867,  and 
again  in  1880,  confirmed  by  provisions  compelling  the  Supreme  Court 
justices  to  reside  within  their  districts,  although  any  Supreme  Court 
justice  might,  if  designated,  sit  in  any  county  of  the  State.    In  the 


III- 


ii;v  (»i-  nil':  iti:\(ii   an 


iiAi: 


>i'  Mw    \(>\:w 


I :.!) 


year  IS?:',  tlic  ix'oplc  rejected  an  aiiieii(|iiieiit  lonkin;,'  (..  llie  riilure 
u{)|>()ilit!iUMit  to  olliee  of  tli(>  Justices  of  the  ('olirt  of  Appeals  uikI  llie 
SupnniK*  (^ourt.  Ju  1874,  and  ai^aiu  in  ISH4,  tlu'  powers  of  counties, 
cities,  towns,  and  villajjjes  to  iiicui-  iiidelitedncss  wero  restricted  hyan 
amendment  to  this  end.  In  1SS2  th(»  canals  of  thi*  Stuto  won)  made* 
f !•('(>  by  constitutional  amendment.  In  1874  two  now  articles  wer(> 
added  to  the  constitution  of  184(1:  o\w  of  thes(>  was  directed  a<;uinst 
bribery  of  pul)lic  officials,  and  tin*  other  provided  that  all  amend- 
ments to  the  constitution  should  bo  in  force  from  the  first  day  of 
January  succeedin<i:  tho  election  at  which  the  same  were  adopted. 

Of  all  tho  changes  instituted  by  tho 
constituti*)n  of  184(5,  those  ereatiug  a  now 
judicial  establishment,  elective  and  di- 
rectly responsible  to  tho  people,  were  the 
most  profound.  Next  in  importance  were 
those  provisions  concorninf!;  the  codifica- 
tion of  the  law  and  the  further  direction 
to  the  legislature  to  ai)point  commission- 
ers to  revise,  simplify,  and  abridge  the 
practice,  forms,  and  proceedings  in  all  the 
courts  of  justice  of  the  Scate.  Up  to  this 
time  the  courts  in  tho  State  and  their 
practice  and  proceediiigs  had  been  sur- 
vivals, and  antedated  in  whole  or  in  part 
the  war  of  independence.  It  was  very 
obvious,  from  the  articles  of  the  new  con- 
stitution, that  the  people  desired  a  revolu- 
tion in  these  ancient  institutions — an  inference  further  emphasized 
by  its  permission  to  the  legislature  to  erect  new  courts  of  conciliation. 
Such  now  tribunals  were  the  first  English  courts  contemplated  in 
New  York  which  were  not  patterned  after  the  law-courts  in  England. 
The  scope  of  the  political  revolution  intended  by  the  people  was  fur- 
ther shown  by  the  innovation  which  permitted  a  naturalized  citizen 
to  become  governor,  and  which  took  away  from  the  executive  the 
appointing  power.  A  policy  of  governmental  decentralization  was 
disclosed  also  by  those  provisions  which  permitted  the  legislature  to 
vest  a  share  of  the  legislative  power  in  boards  of  supervisoi-s  of 
counties.  This  constitution  provided  that  senators  were  to  be 
chosen  for  two  years  instead  of  for  four  years,  and  by  smaller  dis- 
tricts, thus  enlarging  their  direct  responsibility  to  the  people.  Mem- 
bers of  the  lower  house  were  to  be  chosen  by  single  districts,  and 
no  longer  by  the  counties  as  a  whole.  This  single-district  system 
was  an  innovation,  and  had  a  tendency  to  do  away  with  the  old 
county  as  a  ]iolitieal  unit.     The  argument  for  it  was  that  in  large 


(le^&yc^&M^ 


160  HISTORY    OF   THE   BENCH    AND   BAR   OF   NEW   YORK 

commuuities,  such  as  cities,  the  district  system  provided  for  a  more 
direct  and  responsible  representation.  It  was  provided  also  that 
these  districts  were  to  be  reapportioned  from  time  to  time  so  as  to 
provide  for  more  equal  representation,  as  populations  were  shifted 
or  augmented.  While  the  argument  in  favor  of  this  single-district 
system  was  no  doubt  sincere,  it  has  met  with  great  opposition  and 
censure  from  many  who,  while  ardently  attached  to  representative 
institutions,  have  believed  the  ancient  county  a  more  dignified  and 
proper  political  unit  than  a  district.  In  the  city  of  New  York  the 
single-district  plan  at  first  met  with  no  favor,  and  it  may  be  doubted 
whether  the  opinion  of  the  more  thoughtful  has  had  reason  to  change 
the  earlier  opinion. 

In  addition  to  the  organic  changes  tending  to  do  away  with  a  cen- 
tralized State  government,  and  to  reserve  greater  power,  judicial, 
legislative,  and  executive,  to  the  people,  should  be  noted  that  article 
of  the  new  constitution  which  provided  for  its  future  amendment. 
Under  the  constitution  of  1821,  a  majority  of  the  first  and  two  thirds 
of  a  second  legislature  must  favor  the  change  before  a  proposed 
amendment  could  be  submitted  to  the  people.  By  the  constitution  of 
1846,  a  bare  majority  vote  of  approval  sufficed  to  cause  such  submis- 
sion. The  constitution  of  18-I-6  directed  thac  in  the  year  1866,  and  in 
each  twentieth  year  thereafter,  and  at  such  other  times  as  the  legisla- 
ture provided,  the  question  of  holding  a  constitutional  convention 
must  be  submitted  to  a  direct  vote  of  the  people.  To  many  these  last 
pro\nsions  furnish  the  greatest  evidence  of  change  in  the  nature  of 
the  State  government  as  first  established.  The  system  constructed 
by  the  earlier  constitutions  may  be  said  to  have  been  one  by  which 
the  government  was  delegated  to  certain  officers,  executive,  legisla- 
tive, and  judicial,  who  were  invested  with  general  and  more  or  less 
permanent  powers.  These  officers  were  the  law-makers  and  adminis- 
trators of  the  system.  But  by  the  new  constitution  such  delegation 
was  not  only  more  limited  in  scope,  but  greater  power  was  reserved 
to  the  people  themselves  to  act  more  frequently  by  constitutional  en- 
actment on  a  large  class  of  questions.  The  student  of  institutions  has 
detected  in  this  constant  reference  of  important  laws  to  the  people 
themselves,  an  advance  in  the  nature  of  popular  institutions — the 
referendum  being  the  greatest  height  to  which  popular  government 
can  obtain  among  large  masses  of  people.  Such  legislation  by  the 
people  themselves  was  not  contemplated  by  the  founders  of  the  State 
government,  either  when  they  created  their  permanent  judicial  estab- 
lishment or  invested  their  executive  with  the  magisterial  and  legisla- 
tive powers  of  the  former  crown  governors.  Nor  did  the  founders  of 
the  State  government  dream  that  the  investment  of  the  legislature 
with  the  entire  legislative  power — an  achievement  which  then  re- 


III.■^^«)l;^    oi'   imk  iti:N(  ii   a.m>  hai:  ok  m:\\    m>\ik  \i;\ 

(l.rlcd   th(^  success  of  llic   Iv'cvclul  ion  —  uciil.l  some  (iiiy  liavc  to  l.r 
miaidcd  hy  rcscrvalious  from  the  le^isliitiire  itself. 

'V\w  eoiislitutioii  ol"  the  State  j^oveninieiit  tonnulatcl  hy  llic  con- 
vention of  1H4()  was  a(lo})ted  hy  a  vote  of  2'Jl,r)2S  in  its  favor  to  IL',- 
4;{()  af;;ainst  it.  This  now  orj2;anic  hiw  went  into  etliM't  on  .Januai\  1, 
1S47,  and  with  few  modifications  it  still  remains  in  force.  The 
nature  of  the  judicial  establishment  oreatod  hy  tliis  constitution  was 
in  substance  as  follows  :  A  court  of  final  appellate  jurisdiction,  known 
as  the  Court  of  Appeals,  and  already  described,  was  substituted  for 
the  old  Court  of  Errors  constituted  in  the  upper  legislative  house, 
attended  by  the  jjreat  common-law^  judges  and  the  chancellor.  It 
siiould  be  said  that  in  the  whole  history  of  the  commonwealth  of 
New  York  from  the  time  when  final  appeals  lay  to  great  tribunals  iu 
Europe  down  to  the  present,  no  other  appellate  court  connected  with 
New  York  has  given  greater  general  satisfaction  to  the  people  than 
the  Court  of  Appeals  erected  under  the  constitution  of  1846  and  con- 
tinued and  reestablished  by  constitutional  amendment.  The  courts 
of  original  jurisdiction  created  under  the  frame  of  government  estab- 
lished in  1H4()  have  generally  preserved  the  historical  continuity. 
The  new  Supreme  Court,  for  example,  which  is  the  great  court  of 
original  jurisdiction,  preserved  the  jurisdiction  of  the  former  Su- 
preme Court  of  Judicature  of  the  State  and  province,  but  added  to  it 
that  of  the  Court  of  Chancery.  In  other  words,  the  two  former  courts 
have  been  merged  into  one  great  court,  whose  judges  possess  si(h 
modo  the  jurisdictions  of  the  old  chancellor  and  of  the  supreme?  jus- 
ticiars of  the  State,  who  in  turn  had  the  power  of  the  chancellor  and 
of  the  justices  of  the  King's  Bench,  Common  Pleas,  and  Court  of  Ex- 
chequer in  England.^  The  proceedings  of  the  new  supreme  court  of 
general  jurisdiction  were  soon  much  simplified  by  the  adoption  of  a 
uniform  sj'stem  of  pleading,  evidence,  and  trial  in  all  actions  in  the 
new  court,  whether  such  actions  were  formerly  denominated  legal  or 
equitable.  Without  such  auxiliary  pro\asions  the  fusion  of  the  former 
courts  of  law  and  equity  in  one  court  would  have  been  more  difficult. 
As  the  nature  of  this  fusion  possesses  great  historical  importance,  it 
will  be  again  noticed  below.  In  addition  to  the  new  Supreme  Court, 
the  courts  of  record  provided  for  under  the  constitution  of  1840,  or 
created  by  the  legislature  pursuant  to  such  constitution,  were,  as  for- 
merly, of  several  orders.  There  were  minor  civil  courts  for  the  dif- 
ferent counties,  which  were  known,  as  forjuerly,  as  county  courts, 
and  there  were  likewise  civil  courts  for  cities,  generally  styled  city 
courts,  or  superior  courts.  In  addition  to  these  were  the  several  crimi- 
nal courts  for  counties  and  municipalities,  such  as  courts  of  sessions 
and  recorders'  courts.     The  Jurisdictions  of  all  these  courts  were  pre- 

'  Section  217,  Code  of  Civil  Procedure. 


16-2 


HISTORY    OF   THE   BENCH    AND   BAK   OF   NEAV   YORK 


scribed  by  law,  and  sometimes  had  cross  or  remote  references  to  tlie 
jurisdiction  of  the  courts  of  the  province  of  New  York  which  pre- 
ceded them.  Where  the  jurisdiction  of  any  of  the  new  courts  was 
fixed  by  the  constitution  itself,  it  was  beyond  legislative  interference  ; 
but  when  such  court  was  one  created  by  the  legislature,  its  jurisdiction 
was  subject  to  alteration  by  the  legislature.  In  addition  to  the  county 
and  municipal  courts  were  certain  civil  courts,  not  of  record,  intended 
for  the  trial  of  small  or  speedy  causes.  In  the  counties  these  courts 
were  generally  styled  the  courts  of  the  justices  of  the  peace  ;  but  in  the 
cities,  district  courts.  In  addition  to  these  small  courts  not  of  record 
there  were  created  under  the  constitution  of  1846  certain  criminal 
courts  of  lesser  jurisdiction,  with  power  to  try  minor  offenses,  or  to 
bind  offenders  over  to  keep  the  peace.      These  courts  Avere  known 

generally  as  police  or 
n  justices'  courts.  The 
jurisdictions  of  all 
the  lower  courts  in 
the  State  may  be 
styled  statutory.  The 
Supreme  Court,  un- 
der the  constitution, 
alone  possessed  a  com- 
mon law  jurisdiction, 
or  one  defined  most 
largely  by  reference 
to  judicatories  having 
their  rise  and  origin 
in  the  common  law  of 
England,  as  it  stood 
before  the  British  oc- 
cupation of  this  commonwealth.  In  this  respect  the  Supreme  Court 
possessed  a  certain  historic  significance  not  possessed  by  even  the 
appellate  court.  It  also  afforded  the  gateway  to  the  profession  of 
the  law,  as  it  licensed  for  all  courts  of  the  State  all  attorneys  and 
counsel,  who  by  the  new  constitution  might  be  any  male  citizen  of 
the  age  of  twenty-one  years,  of  good  moral  character,  and  proper 
attainment.  In  addition  to  the  courts  denoted,  the  constitution  of 
1846  provided  expressly  for  courts  having  jurisdiction  of  wills, 
testaments,  cases  of  intestacy,  and  probate  matters  generally,  in 
counties  possessing  a  population  of  over  forty  thousand  inhabitants. 
In  smaller  counties  the  county  judges,  who  had  a  probate  jurisdiction 
conferred  by  the  constitution  itself,  were  to  act  exclusively  as  surro- 
gates. Surrogates'  courts  have  now  been  generally  created  for  all  the 
counties  of  the  State.    Occasional  courts  of  impeachment  were  also 


iii>i(»i:v   (»!■    iiii;  iii;.N<  II    am>   n\\:  (U    niw    mii:k  ](;:{ 

(•r(>:il»'(l  :m<l  liiiiihMl  bytli.'  coiisi  it  m  ion  of  ISK;,  -is  l.y  :i11  pn-c'din;: 
constiditioiiH  of  \\u'  Statr.  Sncli  is  the  oiitliiir  of  tlir  in-\\  judicial 
cstablisluiu'iit  of  the  Stat(>  iiiidfi'  llic  coiislif ulioii  of  Islf,.  '{'he  Siai.- 
courts  possessed  coinplete  and  entire  jmisdiclion  tlii()ii<rii()ut  llie  Slat*-, 
and,  except  as  modilied  by  tlie  federal  constitiilion  and  acts  of  (Jon<ri('ss 
conferring  exclusive  jurisdiction  of  certain  i)rescril)ed  cases  on  the 
federal  establishment,  the  ranij:e  of  the  jurisdiction  of  the  State  courts 
covered  tlie  entire  field  of  judicial  inquiry.  The  jurisdiction  of  the 
lesser  courts  was  confined  to  certain  cities  and  counties,  and  their  pro- 
cess could,  not  run  beyond  the  limits  prescribed. 

The  constitution  of  184(5  is  also  notable  for  its  effort  to  couffr  upon 
the  people  a  system  of  laws  which  should  not  afford  such  persistent 
evidence  of  the  former  colonial  subordination.  Althouj^h  the  (!on- 
stitution  elsewhere  declared  that  such  pai-fs  of  the  common  law  as 
did  form  the  law  of  the  colony  on  April  19,  1775,  aud  not  since  abro- 
gated, should  remain  in  force  (together  with  such  acts  of  the  colonial 
legislature,  of  the  congress  of  the  colony,  and  of  the  former  legisla- 
tures of  the  State),  but  subject  to  future  legislative  alteration,  yet  it 
directed  the  first  legislature  of  the  State  thereafter  to  appoint  three 
commissioners,  whose  duty  it  should  be  to  reduce  into  a  written 
aud  systematic  code  the  whole  body  of  the  law  of  the  State,  or  so 
much  thereof  as  to  the  commissioners  seemed  practicable  and  expe- 
dient. To  many  persons  this  was  a  welcome  announcement  that 
the  State  had  entered  a  more  complete  phase  of  independence,  and 
that  it  was  preparing  to  make  its  laws  of  purely  domestic  origin,  and 
to  avoid  the  necessity  of  constant  reference  to  the  laws  of  England. 
From  the  context  of  the  constitution  it  was  exceedingly  plain  that 
the  people  of  the  State  demanded  the  codification  of  their  laws.  The 
judiciary  article  of  the  constitution  of  1846  contained  also  some  pro- 
visions obligatory  upon  the  proceedings  in  the  new  courts,  such  as 
that  "the  testimony  in  equity  cases  shall  be  taken  in  like  manner  as 
in  cases  at  law";  but  there  was  considerable  ambiguity  about  the  pro- 
visions concerning  the  Supreme  Court,  which  induced  some  of  the 
older  school  of  lawyers  to  hope  that  the  practice  in  the  new  Supreme 
Court  might  still  continue  to  reflect  the  former  antinomy  between  law 
and  equity  in  some  such  manner  as  now  prevails  in  the  federal  courts 
of  this  country.  In  January,  1847,  David  Dudley  Field  of  New  York 
published  a  tentative  treatise  entitled  "What  shall  be  done  with  the 
practice  of  the  courts?  Shall  it  be  wholly  reformed?  Questions 
addressed  to  lawyers."  A  memorial  followed,  largely  sign(>d  by  law- 
yers of  the  State,  urging  the  legislature  to  abolish  the  old  forms  of 
action,  and  to  provide  for  a  uniform  course  of  proceedings  in  all  cases, 
whether  of  legal  or  equitable  cognizance.  On  the  8th  of  April,  1847, 
the  legislature  passed  an  act  appointing  Arphaxed  Loomis,  David 


164       HISTOKY  OF  THE  BENCH  AND  BAR  OF  NEW  YORK 

Graham,  and  Xicholas  Hill  commissiouers  on  practice  and  pleadings. 
Mr.  Hill  resigned  in  September  following,  and  Mr.  David  Dudley- 
Field  was  appointed  in  Mr.  Hill's  place  by  a  resolution  of  the  two 
houses  of  legislature  on  September  29,  1847.  On  February  29,  1848, 
the  first  instalment  of  a  code  of  civil  procedure  was  enacted,  to  take 
effect  July  1  following.  The  completed  code  of  civil  procedure  was 
reported  December  31,  1849,  but  its  adoption  was  delayed.  On  the 
same  day  the  code  of  criminal  procedure  was  reported,  but  it  was  not 
adopted  at  that  time.  That  instalment  of  the  code  of  civil  procedure 
which  was  enacted  abolished  all  distinction  between  actions  at  law 
and  suits  in  equity,  and  substituted  one  form  of  action  for  the  pro- 
tection of  private  rights,  or  the  redress  of  private  wrongs.  At  this 
time  this  single  reform  was  the  greatest  ever  accomplished  in  the 
remedial  law  of  an  English-speaking  people.  Its  design  and  accom- 
plishment were  largely  if  not  exclusively  due  to  the  efforts  of  Mr. 
Field,  one  of  the  most  lucid  of  all  legislative  draftsmen,  as  well  as 
one  of  the  most  powerful  and  original  thinkers  ever  seen  in  the  ranks 
of  English-speaking  lawyers.  Unfortunately,  the  symmetry  and  ex- 
cellence of  Mr.  Field's  legislative  work  have  been  much  marred  either 
by  the  action  of  the  legislature,  or  by  its  failure  to  adopt  the  entire 
scheme  of  reform  as  reported  by  the  codifiers.  Not  until  April  6, 
1857,  were  efforts  to  continue  the  reform  contemplated  by  the  consti- 
tution of  1846  successful.  In  that  year  an  act  was  passed  revising  a 
former  code  commission.  The  earlier  commission  had  failed  to  codify 
the  whole  body  of  the  law  of  the  State,  or  to  perform  any  part  of  the 
task  assigned  to  them  by  the  legislature.'  The  act  of  1857  -  appointed 
David  Dudley  Field,  William  Curtis  Noyes,  and  Alexander  Bradford 
commissioners  to  codify  so  much  of  the  law  as  was  not  included  in 
the  reports  of  the  commissioners  on  pleading  and  practice  reported 
to  the  legislature  in  1850.  On  April  10,  1860,  a  political  code  was 
accordingly  reported  to  the  legislature.  On  March  30,  1801,  a  book 
of  forms  adapted  to  the  necessities  of  the  practice  code  was  reported, 
but  not  adopted.  The  penal  code  was  reported  in  December,  1864, 
and  the  civil  code  on  February  13,  1865. 

The  civil,  criminal,  penal,  and  political  codes,  together  with  the  book 
of  forms,  would  have  completed  the  entire  scheme  of  reform  contem- 
plated by  the  constitution  of  1846.  But  of  these  great  works  only  the 
penal  and  criminal  codes  have  passed  into  laws.^  The  civil  and  polit- 
ical codes  have  up  to  this  time  failed  of  enactment.  For  whatever 
reason  these  completed  codes  have  failed  to  become  laws,  it  cannot 
be  doubted  that  their  enactment  would  have  relieved  the  jurispru- 
dence of  the  State  from  many  anomalies  and  archaisms  peculiar  to 
that  part  of  the  law  of  England  which  we  have  seen  to  be  the  law  of 

1  Chapter  49,  Laws  of  1847  ;  Chapter  289,  id. ;  Chapter  312,  Laws  of  1849.       2  Chapter  266. 
3  Chapters  442  and  676,  Laws  of  1881. 


^^2^- 


MISIOKV    OK    'INK    lti;N<  II     \M>    IIAK    oi'     MW     ViH;K  lO.") 

tlif  roniicr  province  of  N.-w-Voik.     Tlir  whole  liody  (.f  llir  l;i\v  (.!'  tlio 

Stato  would  then  have  Ik'cm  rc(huM'»l  (o  a  vvi-ittcii  lonii,  with  the  flTfrf, 

as  many  bolU'ved,  of  ponuitliiifj:  tho  ciKM'jxies  of  the  har  to  he  directed 

to  a  hi{j^her  and  nioro  {>hilosophieal  exposition  of  |irinci|»lrs  tlum  is 

perniissihlo  wIumi  tho  text  of  tho 

law  is  unwritton  and  deduced  only  J^*     N- 

from  cases  and  precedents.  Z^;  ^n 

As  the  law  stands, —  several  of  •  A ^ \^— . 

the  codes  not  having  been  enact-  ^.  '"^ 

ed, — the  private  jural  relations  of 
all  the  citizens  of  the  State  are  now 
determined  either  by  certain  inhi- 
bitions contained   iu   the  written 

constitutions    of   government   re-  ^ 

hited  to  })rivate  law,  or  by  the  acts  /  , 

of  the  legislature  of  New  York,  in-  /      /  /J 

eluding  the  Kevised  Statutes  (fro-  / 

quently  amended  by  later  legisla-  ,^     /« 

tures  of  the  State),  or  lastly  by  the  ^--^      cy 


common   law  of  the   pro\dnce 
New  York,  as  it  stood  on  the  date 

of  the  battle  of  Lexington,  in  the  j'ear  1775,  and  as  since  altered  by 
legislation.  The  constitution  of  1846,  adopting  the  phraseology  of  the 
constitution  of  1821,  provided  also  that  the  acts  of  the  old  assembly 
of  the  province,  and  the  resolutions  of  the  congress  and  of  the  con- 
vention of  the  State  in  force  April  20,  1777,  and  not  since  repealed  or 
altered,  should  also  form  part  of  the  fundamental  law;  but  as  a  mat- 
ter of  fact  the  acts  of  the  provincial  asstnnblies  were  all  repealed  in 
the  year  1828,  while  those  acts  of  the  convention  and  the  resolutions 
of  the  congress  of  any  permanent  effect  had  by  the  year  18-46  been  re- 
vised by  statutes  of  the  State,  so  that  the  common  law  and  the  legisla- 
tive acts  of  the  State  government  may  be  roughly  said  to  constitute 
the  entire  body  of  the  substantive  law  of  the  State  in  force  since  18-46. 
The  common  law  so  in  force  has  of  late  years  received  so  much  ju- 
dicial interpretation  that  almost  all  its  leading  institutes  appear  in 
the  printed  reports  of  the  adjudications  of  the  State  courts.  That 
such  a  form  for  the  great  body  of  law  of  the  State  is  now  at  all  what 
was  contemplated  by  the  constitution  of  1846,  cannot  be  pretended. 
Yet,  that  the  contents  and  substance  of  the  law  as  it  actually  exists  are 
adequate  at  present  to  all  the  exigencies  of  a  highly  ci%ilized  State, 
experience  affirms.  To  indicate  more  fully  the  nature  of  the  institutes 
of  this  great  body  of  private  law  would  require  greater  technical  pre- 
cision than  the  limits  of  this  outline  permit.  By  force  of  the  constitu- 
tional definition  of  the  law^  of  the  State,  the  remnant  of  the  old 


166  HISTOEY    OF   THE   BENCH   AND   BAR   OF   NEW  YORK 

Dutch  law  which  had  become  a  part  of  the  common  law  of  the  prov- 
ince, still  remains,  in  very  limited  instances,  a  rule  of  particular  prop- 
erty held  under  Dutch  ground-briefs,  or  by  Dutch  subjects  under  the 
articles  of  capitulation  of  IGG'l.  Otherwise  the  law  of  New  Nether- 
land  has  been  repealed,  abrogated,  or  wholly  displaced.  In  many  in- 
stances the  common  law  of  the  province  of  New  York,  referred  to  by 
the  constitution  of  1846  as  continuing  in  effect  under  that  constitu- 
tion, has  until  a  comparatively  late  period  regulated  wholly  many  of 
the  domestic  relations  in  this  State,  such  as  husband  and  wife,  parent 
and  child,  guardian  and  ward,  and  master  and  servant.  But  of  late 
years  the  common  law  has  been  modified  by  such  statutes  as  the  mar- 
ried women's  property  acts,  and  other  acts  in  conformity  with  the 
trend  of  modern  thought  and  opinion.  On  March  2,  1870,'  efforts 
were  again  made  to  accomplish  the  work  directed  by  the  constitution 
of  1846,  and  remaining  unperformed.  The  new  commissioners,  of 
whom  Mr.  Field  was  not  one,  were  directed  to  incorporate  into  and 
make  part  of  their  revision  the  proposed  codes  reported  to  the  legis- 
lature by  the  earlier  commissions.  The  last  commission  proceeded 
to  revise  the  early  code  of  procedure :  the  other  portions  of  their  task 
have  remained  unfulfilled.  Thus,  up  to  the  present  time,  the  com- 
plete codification  contemplated  by  the  constitution  of  1846  has  not 
been  accomplished. 

Having  now  outlined  the  form  of  the  public  and  private  law  of  the 
State  as  it  exists  at  the  present  day,  a  word  of  application  may  be 
made  to  the  status  of  a  citizen  of  the  city  of  New  York.  The  com- 
mon law  of  the  State  is  the  same  in  all  parts  of  the  territory  under 
the  jurisdiction  of  the  State,  there  being  no  portion  subject  to  a  dif- 
ferent common  law  from  the  rest.  Of  the  statutes  of  the  State  some 
are  general  in  application,  while  others,  by  limitation,  apply  to  specific 
communities,  such  as  the  city  of  New  York.  Thus,  those  inhabiting 
the  city  of  New  York  are,  as  a  rule,  subject  to  a  common  law  of  uni- 
versal application  throughout  the  State,  and  to  a  statute  law  which 
may  or  may  not  be  general  in  operation.  Of  the  statutes  of  the  State 
not  everywhere  operative,  the  municipal  charters  of  the  city  of  New 
York  afford  good  examples ;  for  these  charters  contain  not  only  fran- 
chises to  the  city  as  a  corporation,  but  also  occasional  i-ules  for  the 
government  of  the  citizens  within  the  jurisdiction  of  such  municipal 
corporation.  The  writer  has  elsewhere  noticed  the  Dongan  and 
Montgonierie  charters."  At  the  adoption  of  the  first  constitution 
of  the  State,  the  Montgomerie  Charter  of  1730  was  in  full  force, 
and  the  State  constitutions  of  the  present  century  have  provided 
that  nothing  therein  contained  should  annul  any  charters  to  bodies 
politic  and  corporate  made  prior  to  the  14th  of  October,  I??.'). 
Until  the  year  1830  the  Montgomerie  Charter,  as  somewhat  modified 

>  Chapter  33.  '  Chapter  XIV,  Vols.  I  and  U,  Memorial  History. 


iiisioiiv  oi'   Tin:  i!i:.N('ri   am»  it\i:  m-  m:\v   mimk  IC? 

by  slatulc,  nMiiaiiKMl  (lie  fiiiKlaiiinitiil  cliartcr  of  IIk-  city.  In  that 
y»-af  an  anioudcd  cliarttT  was  mloptod.  In  Juiu',  1H2!),  tin*  coninion 
couMcil  had  recoimiioiulod  tho  citizons  to  choose  (l(>l('{j;ut<'.s  to  a  con- 
veutioii  for  tho  i)iiri)oso  of  amciuling  and  rcvisinji;  tlio  aiificnt  char- 
tor.  St(>ps  wore  accordingly  taken  nndor  tho  advice  of  Ex-Cliancellor 
Kent,  and  on  the  7th  (hiy  of  April,  1830,  at  tho  request  of  a  majority 
of  the  citizons,  the  legislature  passed  an  act  "to  amend  tho  Charter  of 
tho  City  of  Now  York."'  In  this  act  tho  old  charter  is  recognized  as 
subsisting,  in  so  far  as  it  is  not  inconsistent  with  the  new  act's  own 
provisions.  On  April  2,  1849,  July  11,  1851,  April  10,  1852,  April  11, 
18.*);),  and  at  other  times,  further  amendments  were  made  to  tlu;  char- 
ter. But  on  Aj^ril  4, 1857,  most  of  the  more  recent  amendments  were 
repealed,  and  chapter  446  of  tho  laws  of  1857  was  substituted  for 
them.  It  was,  however,  still  provided  that  tho  provisions  of  the  royal 
charters  should  continue  in  force  where  not  abrogated  or  inconsistent 
with  chapter  446  of  the  laws  of  1857. 

In  the  year  1873  -  an  act  was  passed  "  to  reorganize  the  local  gov- 
ernment of  the  City  of  New  York,"  which  made  extensive  changes  in 
the  administrative  part  of  the  city  charter,  rei)ealing  various  amend- 
ments enacted  in  the  present  century,  but  still  continuing  in  force 
those  provisions  of  tho  ancient  royal  charters  then  operative  and  not 
inconsistent  with  its  provisions.  In  1874  the  city's  boundaries  were 
much  enlarged,'*  and  the  power  of  the  separate  county  government 
was  ti'ansferred  to  the  city  authorities.^  In  the  years  1879  and  1880, 
the  legislature  authorized  a  revision  of  the  special  and  local  laws  af- 
fecting New  York  city,  and  made  such  revision  presumptive  evidence 
in  the  New  York  courts  of  justice  of  all  special  or  local  laws  in  force 
in  the  city  of  New  York.^  In  1881,"  most  of  the  local  acts  aflfecting 
New  York  city  passed  subsequent  to  1784  being  contained  in  the  re- 
vision mentioned,  were  otherwise  repealed.  In  1882  all  the  laws  af- 
fecting public  interests  in  the  city  of  New  York,  having  been  I'ovised, 
were  consolidated  in  one  act  known  as  the  "  consolidation  act," "  and 
it  was  thought  that  all  future  laws  affecting  the  city  of  New  York 
should  refer  to  this  act.  But  such  has  not  been  the  case,  and  various 
acts  aifecting  the  city  have  been  since  passed  without  any  special  ref- 
erence to  the  consolidation  act  of  1882.  Curiously  enough,  the  an- 
cient royal  charter  known  as  the  Montgomerie  Charter  of  1730,  in  so 
far  as  it  has  not  been  swept  away  by  inconsistent  legislative  enact- 
ment, remains  in  force,  having  never  been  expressly  repealed.  Thus, 
though  the  nature  of  the  city  government  in  most  of  its  administra- 
tive features  has  completely  changed,  that  feature  of  the  Dongan 
Charter  which,  in  the  year  1686,  vested  the  powers  of  local  government 

1  Chapter  122.  Laws  of  1830.  5  Chapters  594  and  595,  Laws  of  1880. 

2  Chapter  335,  Laws  of  New-York.  6  Chapter  537. 

3  Chapter  411.  7  Chapter  410.  Laws  of  1882. 
*  Chapter  304. 


168  HISTORY    OF   THE   BENCH   AND   BAR   OF   NEW    YORK 

in  a  mayor,  alderman,  and  commonalty,  exists  at  the  present  time. 
Notwithstanding  the  many  changes  introduced  by  the  legislature  in 
the  present  century,  the  skeleton  of  the  city  government  possesses 
a  very  considerable  antiquity.  To  give  in  detail  the  nature  of  the 
changes  actually  instituted  would  exceed  the  limits  prescribed  for  a 
mere  outline,  and  has  not  been  attempted. 

In  conclusion,  it  may  be  remarked  that  in  the  State  of  New  York 
popular  sovereignty,  which  attained  its  highest  phase  under  the  State 
constitution  of  1846,  has  been  developed  somewhat  differently  from 
that  in  the  other  original  States,  where  it  was  often  observable,  even 
before  the  war  of  independence,  in  town  and  city  governments. 
But  in  the  city  of  New  York,  down  to  the  war  of  independence,  the 
crown  government  exercised  unusual  influence  and  authority.  After 
the  American  Revolution  the  State  government  succeeded  to  this 
power  over  the  city  government.  Not  until  1834  were  the  mayors 
of  this  city  elected  by  the  inhabitants  of  the  city.  At  the  present 
time  the  old  legislative  powers  of  the  municipal  authorities  have 
almost  dwindled  into  insignificance,  having  been  largely  assumed 
by  the  legislature  of  the  State,  so  that  the  measure  of  freedom  now 
enjoyed  by  the  inhabitants  of  this  city  is  determined,  not  by  the 
history  and  the  laws  of  the  city  itself,  but  by  those  of  the  State, 
although  the  history  of  the  city  long  antedates  that  of  the  State. 
By  a  change  instituted  in  the  State  constitution  of  1846,  restoring 
to  the  clergy  eligibility  for  public  office,  and  by  the  fifteenth  amend- 
ment to  the  federal  constitution,  forbidding  any  State  to  abridge 
the  right  to  vote  on  account  of  race,  color,  or  previous  condition 
of  servitude,  the  political  equality  of  all  citizens  of  the  State  is  abso- 
lute. Notwithstanding  the  annual  introduction  into  the  State  and 
city  of  a  large  number  of  persons  of  foreign  birth,  wise  naturaliza- 
tion laws  have  incorporated  most  of  them  into  the  very  heart  of  the 
body  politic,  so  that  they  too  are  amenable  to  the  same  laws  and 
possess  the  same  rights  as  the  descendants  of  the  original  settlers, 
thus  avoiding  many  complications  peculiar  to  those  mixed  States 
where  extensive  consular  jurisdictions  are  recognized.  By  the  four- 
teenth amendment  to  the  federal  constitution  the  children  of  for- 
eigners, if  born  in  the  United  States,  are  citizens  of  the  State  where 
they  reside.  Thus  most  of  the  inhabitants  of  the  city  of  New  York 
are  citizens,  and  all  citizens  possess  precisely  the  same  rights  and  are 
subject  to  the  same  law.  Under  such  conditions  there  is  happily  no 
excuse  for  political  discontent.  The  object  of  the  founders  of  the 
State  has  been  in  this  respect  fully  consummated.  Yet  to  assert  that 
the  condition  of  the  law  and  the  constitution  is  perfect  would  be  an 
exaggei'ation  ;  but  the  assertion  that  there  has  been  and  is,  on  the 
whole,  a  steady  and  healthy  growth  of  law  and  liberty  here,  would 
be  one  which  few  will  deny. 


THE   CONSTITUTION   OF  1804. 

UK  ])res('Tit  constitution  of  the  sliitc,  :is  fonniilated  by  the 

constitutional  convention  of  1S!)4  niid  ratified  by  the  peo- 

l)le  at  the  general  election  of  that  year,  is  the  Hnal  issue  of 

a  ])rotnicted  and  bitter  partisan  struggle,  which  will  always 

be  memorable  in  New  York  j)olitical  history. 

By  the  terms  of  the  constitution  adoi)ted  in  184G,  the  legislature 
was  required,  in  each  twentieth  year  thereafter,  to  submit  to  the  peo- 
ple the  question  whether  a  convention  should  be  summoned  for  ])ur- 
poses  of  constitutional  revision.  This  question  was  duly  referred  to 
the  popular  verdict  in  1866,  and,  an  affirmative  vote  being  given,  a 
constitutional  convention  assembled  in  the  ensuing  year,  whose 
amendments  were,  however,  with  a  single  exception,  rejected  at  the 
polls.  Thus  the  work  of  systematically  reconstructing  the  constitu- 
tion was  postponed  to  await  the  expiration  of  another  period  of 
twenty  years.  Meaiitime  the  need  of  various  changes  was  felt  to 
be  so  important  that  in  1873  a  "  constitutional  commission "  was 
organized  ;  and  the  amendments  which  it  drafted — eleven  in  num- 
ber— were  subsequently  ratilied  by  the  legislature  and  accepted  by  the 
people.  Yet  the  constitutional  improvements  obtained  through  this 
extemporized  commission,  and  others  effected  by  means  of  separate 
amendments,  were  generally  regarded  as  quite  inadequate  ;  and  accord- 
ingly when,  in  1886,  the  people  were  again  asked  to  i)ass  upon  the 
question  of  holding  a  constitutional  convention,  they  assented  to  the 
proposal  with  substantial  unanimity,  only  30,000  negative  votes  being 
cast  in  a  total  of  more  than  000,000. 

For  years  the  conditions  determining  the  political  control  of  the 
state  had  presented  a  curious  anomaly.  The  democrats,  althongh 
frequently  able  to  elect  the  governor  and  other  executive  officers  on 
the  general  state  ticket,  had  been  hopelessly  in  the  minority  in  the 
legislature.  The  existing  legislative  a])i)ortionment,  giving  the  repub- 
lican rural  districts  a  considerable  relative  preponderance  in  repre- 
sentation over  democratic  New  Y^'ork  City  and  Brooklyn,  rendered  it 
impossible,  in  all  ordinary  circumstances,  for  the  democrats  to  obtain 
a  majority  in  the  senate  and  assembly.  This  state  of  affairs  was 
viewed  with  great  disgust  by  the  aggressive  democratic  leaders,  and 
they  impatiently  awaited  an  opportunity  for  changing  the  apportion- 
ment in  the  interest  of  their  party  organization. 

At  the  session  of  1887  the  democratic  governor  was.  as  usual,  con- 


170 


HISTORY  OF  THE  BENCH  AXD  BAR  OF  NEW  YORK 


fronted  by  a  republican  senate  and  assembly.  The  legislature  in  due 
time  presented  to  liim  a  bill  providing  for  the  election  of  delegates  to 
the  proposed  constitutional  convention.  It  was  understood  by  both 
parties  that  the  convention,  when  held,  would  establish  a  new  basis  of 
apportionment,  and  therefore  that  the  party  controlling  the  ma]'ority 


WAI.l.    f-TREET    IN    1H'.)'> 


of  delegates  would  for  many  years  to  come  enjoy  a  marked  advantage 
in  legislative  representation.  It  was  charged  by  the  democrats  that  the 
constitutional  convention  bill  of  the  legislature  of  1887  was  so  drawn 
as  to  insure  republican  ascendency  in  the  coming  convention.  Gover- 
nor Hill  refused  to  endorse  a  scheme  so  unfavorable  to  his  party,  and 


iiisroijv  OK  riiK  in:N(ii   and  hai: 


171 


V(>f()(>(l  llic  bill.  Atlt'iii]>Is  iiiiidt'  ill  tlif  iK'xt  liv«'  yriirs  lo  :iri:inir«'  :i 
jilim  for  siimnioniii^  the  drhiycd  convciilion  were  ('(jii;illy  iinsii(c«'ss|iil, 
Ilic  (leino('i-:itic  <i;ov('riU)r  iuul  rcpubliciin  Ic^ishitiirc  bciii^  sfill  iiiuiblc 
fo  reconcile  their  (lilfcreiiccs.  It  was  not  iinlil  1S!)2  tli:i(  Jiii  n^rcciiiciit 
was  arrived  :it.  'IMie  democrats  liad  at  last  i^ained  tlie  iijjper  hand  in 
both  the  senate  and  the  assembly,  and  a  new  nieasnre,  which,  it  was 
snpposed,  wonld  give  them  full  mastery  of  tln^  convention,  was  j)assed 
at  the  sessions  of  18!)2  and  18i)3  and  signed  by  the  governor.  But  the 
fall  elections  of  18!)8  resulted  in  an  overwhelming  icpublican  victory, 
and  of  the  1(58  members  of  the  convention  only  Go  were  democrats. 
The  number  of  delegates  originally  chosen  was  175,  of  whom  15  were 


/'/>,^-.s-  Dltice, 
Potter  Buiidiii! 


.-EWSrArEK  ROW 


delegates  at  large  and  the  remainder  represented  the  senate  districts  ; 
but  in  consequence  of  deaths,  resignations,  and  the  unseating  of  mem- 
bers declared  fraudulently  elected,  the  total  was  reduced  to  168. 

The  convention  assembled  in  Albany,  May  15,  1894,  and  continued 
in  session  until  September  29.  Although  its  membership  included  a 
number  of  eminent  lawyers,  it  was  not,  on  the  whole,  a  specially  note- 
worthy representative  body.  Its  officers  were :  President,  Joseph  H. 
Choate ;  1st  vice-president,  Thomas  G.  Alvord ;  2d  vice-president, 
AVilliam  H.  Steele  ;  secretary,  Charles  E.  Fitch.  Its  work  was  distrib- 
uted among  twenty-seven  regular  committees.  It  had  under  consider- 
ation more  than  four  hundred  amendments,  of  which  it  adopted  thirty- 


172  HISTORY   OF   THE   BENCH  AND   BAR   OF   NEW  YORK 

three  ;  and,  in  addition,  much  obsolete  matter  was  stricken  out  of  the 
old  constitution.  The  revised  instrument  framed  by  the  convention 
was  comprised  in  fifteen  articles,  which,  having  been  ratified  by  the 
people  on  November  6,  1894,  took  effect  as  the  organic  law  of  the  state 
on  January  1,  1895. 

Public  interest  in  the  convention's  transactions  centered  in  its  re- 
adjustment of  the  legislative  apportionment.  The  membership  of  the 
senate  was  increased  from  32  to  50,  and  that  of  the  assembly  from  128 
to  150,  and  the  boundaries  of  each  district  were  defined.  It  was  pro- 
vided that  these  boundaries  should  not  be  disturbed  until  1905,  when 
a  new  apportionment  should  be  made  on  the  basis  of  an  enumeration 
of  the  inhabitants  of  the  state  then  to  be  taken,  but  with  the  proviso 
that  New  York  City  should  in  no  case  have  more  than  one-third  the 
members  of  the  senate,  or  New  York  City  and  Brooklyn  together 
more  than  one-half.  The  new  apportionment  was  strenuously  objected 
to  by  the  democratic  members,  on  the  ground  that  it  was  cunningly 
devised  to  j)erpetuate  republican  control  of  the  legislature  in  the  face 
even  of  heavy  democratic  majorities  in  the  state  at  large.'  A  com- 
mittee of  the  republican  members,  in  an  address  to  the  people,  made 
a  spirited  reply  to  these  attacks.  In  justification  of  the  alleged 
unfairness  toward  the  democratic  strongholds,  the  republican  mem- 
bers said : 

Before  another  constitutional  convention  presents  its  woi'k  to  the  people  it  is 
probable  that  the  cities  of  New  York  and  Brooklyn  or  the  greater  city  formed  by 
their  union  will  contain  a  majority  of  the  inhabitants  of  the  state.  If  the  pi-esent 
system  continues  they  will  be  able  to  elect  the  governor,  the  state  officers,  a  majority 
of  the  senate  and  a  majority  of  the  assembly.  Both  by  force  of  numbers  and  by  the 
multiplied  power  of  compact  organization  and  cohesion  among  the  representatives 
from  a  single  county  responsible  to  a  single  local  political  oi-ganization,  they  will  be 
able,  absolutely,  to  control  the  government  of  the  state.  What  will  be  the  con- 
sequence of  compelliug  the  vast  region  extending  from  the  City  of  New  York  to  the 
St.  Lawrence  and  to  Lake  Erie,  with  its  varied  interests,  sentiments  and  opinions, 
not  over  well  understood  by  the  inhabitants  of  the  city,  to  submit  to  such  a  domina- 
tion ?  Would  such  an  arrangement  conduce  to  the  permanent  welfare  of  the  state  ? 
Our  opinion  is  that  it  would  not;  and  that  the  provision  which  secures  to  the  whole 
state  outside  of  the  city  a  bare  half  of  one  house  of  the  legislature,  leaving  to  the 
city  such  control  as  its  numbers  may  give  over  the  other'  house  and  over  the 
executive  department,  is  a  slender  enough  safeguard  against  so  unfortunate  a  result. 

We  believe  the  provision  to  be  sound  in  principle ;  that  somewhere  in  every 
representative  government  there  should  be  a  recognition  of  variety  of  interest  and 
extent  of  territory,  as  well  as  of  mere  numbers  united  in  interest  and  location. 

Such  a  departure  from  the  rule  of  strict  numerical  representation  is  recognized 
by  the  constitution  of  the  United  States  in  the  organization  of  the  senate,  by  the 
constitution  of  the  State  of  Pennsylvania  in  limiting  the  representation  wliich  the 
city  of  Philadelphia  may  have  in  its  senate  to  one-sixth  of  its  members,  and  by  the 

i  Tlic  following  is  a  specimen  of  these  democratic  represent  republican  districts  by  130,348  and  leave  un- 

accusations;    It  was  asserted  that  fifteen  of  the  new  represented   a  population    in    democratic    districts  of 

senate  districts,  having  a  population  4.59,672  less  than  131,287.    See  N.  Y.  Evening  Post,  October   6,  1«94. 
fifteen  other  districts,  were  so  conslructed  as  to  over- 


iiisroKY  OF   iiii';  iti.Ncii   AM)  M\it  "M'  M  u    \n\:K  17:5 

rotislitiitioM  of  111. ■  Stale  of  Maryland,  in  liiiiiliii;,'  (he  rcprcsf'ntalioii  wliicli  tlic  city 
of  lialtiniorc  may  liavc. 

Similar  provisions  havt>  Ix'cn  a(loi)lr(l  hy  the  Stal<'  of  ( )liio  nfTectiiip  Cincinnati 
and  C'lov(>lan(l,  tlio  State  of  Missouri  aircclinj;  SI.  Louis,  tlic  Stato  of  Rliodo  Island 
atfcctiiifr  ProvidiMK'o,  and  by  otlicr  states  of  the  Union  having  larj^e  cities.  It  is  the 
rule  ratin>r  than  the  exception  throu^^hout  the  Union. 

Witliout  reference  to  the  merits  of  the  controversy,  it  is  niKiiies- 
tionable  that  the  treatment  of  the  :i|)])ortionment  question  by  the  con- 
vention of  1S94  tended  to  ag^nivate  matters,  and  tliere  is  conse(iiienlIy 
every  probability  tliat  the  next  constitutional  convention  will  be 
similarly  agitated  by  issues  of  mere  paitisan  concern.  Fortunately, 
however,  its  assembling  will  not  be  contingent  upon  the  political  cir- 
cumstances of  the  day  ;  for  the  new  constitution  explicitly  declares 
that  if  in  191G  the  people  decide  in  favor  of  a  convention,  the  contem- 
plated body  shall  come  together  in  the  year  following. 

In  addition  to  the  legislative  apportionment  various  political 
amendments  were  adopted  by  the  convention,  which  were  received 
with  general  a])proval.  The  most  important  of  these  was  one  providing 
for  the  separation  of  municipal  elections  from  the  state  and  presi- 
dential elections  in  the  cities  of  New  York,  Brooklyn,  Buffalo, 
Rochester,  Syracuse,  Albany,  and  Troy.  It  was  arranged  that  muni- 
cipal officers  in  the  foregoing  cities  shall  henceforth  be  chosen  in  the 
odd-numbered  years,  and  the  terms  of  the  state  officers  were  reduced 
from  three  years  to  two,  causing  state  elections  to  fall  uniformly  in 
the  even-numbered  j'ears.  The  principle  of  civil  service  reform  was 
embodied  in  the  fundamental  law,  by  requiring  that  appointments  and 
promotions  be  based  upon  merit,  and  be  ascertained,  so  far  as  practic- 
able, by  competitive  examination.  All  state  officers  and  members  of 
the  legislature  were  forbidden  to  accept  railway  passes  or  gratuitous 
service  from  telegraph  and  telephone  companies.  Provision  was  made 
for  extending  the  gubernatorial  succession  by  authorizing  the  speaker 
of  the  assembly  to  perform  the  duties  of  chief-executive  in  the  event 
of  the  death  or  incapacitation  of  the  governor  and  lieutenant-governor. 
Correction  of  abuses  in  legislative  procedure  Avas  sought  bj*  directing 
that  all  bills  shall  be  printed  in  their  final  form  at  least  three  days 
before  their  passage,  prohibiting  riders  on  appropriation  bills,  and 
vesting  in  the  municipal  authorities  of  the  larger  cities  the  right  to 
review  bills  affecting  their  communities.  An  effective  blow  w^as  dealt 
at  pre-election  naturalization  activities  by  prescribing  a  period  of 
ninety  instead  of  ten  days  of  citizenship  before  the  right  of  franchise 
can  be  exercised.  The  office  of  coroner  was  abolished  by  omitting  all 
mention  of  it. 

The  convention,  besides  manifesting  a  friendly  disposition  toward 
moderate  political  reforms,  evidenced  certain  rather  decided  radical 
sympathies.  An  amendment  was  inserted  specifying  that  no  ''  pool- 
selling,  bookmaking,  or  any  other  form  of  gambling,"  shall  "  hereafter 


174 


HISTORY    OF   THE   BENCH   AND   BAR   OF   NEW   YORK 


be  authorized  or  allowed  within  this  state."  '  A  proposed  amendment 
jaermitting  the  question  of  woman  suffrage  to  be  submitted  to  the 
people,  although  voted  down,  received  significant  support,  59  votes 
being  recorded  in  its  favor. 

The  crowning  work  of  the  convention  was  its  thorough  reorgan- 
ization of  the  judiciary  system  of  the  state."  This  was  undertaken, 
and  prosecuted  throughout,  in  the  interest  of  promoting  the  more 
speedy,  uniform  and  effective  administration  of  justice,  and  the  result- 
ing changes  have  contributed  materially  toward  the  relief  of  the  Court 
of  Ai)]ieals,  the  diminution  of  trial  calendars  generally,  and  the  sim- 
plification of  litigation — reforms 
for  which  there  was  a  pressing 
need. 

The  former  constitution  of  the 
Court  of  Appeals  was  left  undis- 
turbed in  all  respects,  and  the 
only  alterations  affecting  this 
tribunal  were  with  a  view  to 
lightening  its  burdens  and  limit- 
ing it  to  its  proper  function  of 
declaring  and  settling  the  law. 
The  Supreme  Court  was  enlarged 
by  the  addition  of  twelve  new 
justices— three  in  the  1st  judi- 
cial district,  three  in  the  2d,  and 
one  in  each  of  the  others.  The 
state  was  divided  into  four  de- 
partments—the county  of  New 
York  constituting  the  1st, — to 
take  the  place  of  the  nine  gen- 
eral terms  of  the  Supreme  and 
Superior  Courts.  The  2d  divi- 
sion of  the  Court  of  Appeals  was  abolished,  and  in  its  stead  an  appel- 
late division  of  the  Supreme  Court  was  created,  composed  of  seven 
justices  in  the  1st  department  and  five  in  each  of  the  others.  No  more 
than  five  justices  are  to  sit  in  any  case,  four  are  necessary  to  a  quorum, 


lADISON   &QUARE  GAUDEN. 


1  In  their  address  to  the  people  from  which  we  have 
already  quoted  the  republican  members  defended  this 
amendment  in  the  following  terms: 

"The  passion  for  gambling  to  which  the  system  of 
lotteries  formerly  ministered  has  found  fresh  oppor- 
tunity under  the  so-called  Ives  pool  bill,  and  under 
color  and  pretext  of  betting  upon  horse-races,  is  work- 
ing widespread  demoralization  and    ruin  among   the 

young  and  weak  throughout  the  community It 

is  claimed  that  this  [anti-gambling]  provision  will 
array  in  opposition  to  the  proposed  constitution  a  great 
and  unscrupulous  money  power,  but  we  appeal  to  the 
virtue  and  sound  judgment  of  the  people  to  sustain  the 
position  which  we  have  taken." 


'  The  judiciary  committee  of  the  convention  was  com- 
posed of  the  following  members:  Elihu  Root,  New 
Yorkcounty;  Louis  Marshall,  Onondaga  county:  Henry 
J.  Cookinham,  Oneida  county;  Tracy  C.  Becker,  Erie 
county;  J.  Rider  Cady,  Columbia  county;  John  F.  Park- 
hurst,  Steuben  county;  John  I.  Gilbert,  Franklin  coun- 
ty; J.  Johnson,  Kings  county;  Daniel  H.  JIcMillan, 
Erie  county;  Nathaniel  Foote,  Monroe  county;  C.  H. 
Truax,  New  York  county;  Roswell  A.  Parmeiiter, 
Rensselaer  county;  Edwin  Countryman,  Albany  coun- 
ty; John  M.  Bowers,  New  York  county;  De  Lancey 
Nicoll,  New  York  county;  Aliuet  F.  Jenks,  Kings 
county  ;   and  George  U.  Bush,  Ulster  county. 


iii>it)i:v  OK   iiiK  in;N(  II   wn  n\\:  >>y  m:\v  vowk  IT.") 

:iii(l  llH-ass.'Mt  of  thiv.'  is  ic.iiiirrd  for  :i  <li\i.si(iii.  l-'ioiii  :ill  llio  jiis- 
liccs  t'l('<'t('(l  to  llu'  SiiprciiK;  Court  the  "^on ciiior  is  lo  dcsi^Miiitc  tliosc 
wlio  shall  {'oustitute  the  tii)i)ellate  division  in  racli  dcjjartiiicnt,  and  he 
is  also  to  select  the  jiresidin";-  justices. 

With  the  l)e^iniun,L,M)l"  ISiX)  the  Court  of  Coninion  i'lcasof  the  City 
and  (•ountyof  Kew  Yoi'k,  the  Superior  Court  of  the  City  of  Aew  York, 
the  Superior  Court  of  Buffalo,  antl  the  City  Court  of  Jirooklyn  were 
abrogated  and  tlieir  jurisdiction  transferred  to  the  Supreme  Conrt. 
Circuit  Courts  and  Courts  of  Oyer  and  Terminer  were  likewise  done 
away  with,  and  the  Supreme  Court  was  appointed  to  adnunister  their 
functi(ms.  The  jurisdiction  of  the  Court  of  Api)eals  is  heiiceforth  lim- 
ited to  the  review  of  questions  of  hiw,  except  in  cases  where  the  judg- 
ment is  of  death.  No  unanimous  decision  of  the  appellate  division  of 
the  Supreme  Court  that  there  is  evitlence  supporting  a  linding  of  fact 
or  a  verdict  not  directed  by  the  court  can  be  reviewed  by  the  Court  of 
Appeals  ;  but  the  appellate  division  in  any  department  may  allow  a^)- 
peal  upon  any  question  of  law  that  in  its  opinion  ought  to  be  reviewed 
by  the  Court  of  Appeals.  Courts  of  Sessions,  except  in  New  York 
county,  were  abolished,  but  the  existing  Surrogates'  Courts  were 
continued. 

The  main  features  of  this  reorganization  are,  first,  the  relief  of  the 
Court  of  Appeals  by  the  establishment  of  an  intermediate  a])pellate 
tribunal,  and  second,  the  correction  of  the  confusing  and  undesirable 
multiplication  of  courts  in  the  larger  cities.  Thus  a  single  great  court 
of  original  jurisdiction— the  Supreme  Court— was  designated  to  do  the 
work  formerly  divided  among  a  variety  of  special  courts.  To  quote 
the  words  of  one  of  the  prominent  members  of  the  judiciary  committee 
of  the  convention,  "  By  abolisliing  these  courts,  questions  of  jurisdic- 
tion which  have  hitherto  been  a  source  of  confusion  and  difference  are 
set  at  rest,  and  litigants  are  not  deprived  of  their  rights  because  their 
counsels  have  erred  in  the  choice  of  a  tribunal.  But  what  seems  to  con- 
stitute a  reform  even  more  beneficial  lies  in  the  fact  that  no  litigant 
shall  be  permitted  to  select  his  own  tribunal.  Heretofore  the  plaintiff 
was  at  liberty  to  do  so,  while  the  defendant  was  compelled  to  respond 
in  the  court  chosen  by  his  opponent.  Hereafter  jilaintift"  and  defend- 
ant will  be  on  an  equal  footing."  ' 

A  proposal  to  return  to  the  old  appointive  method  in  the  choice  of 
judges  was  emphatically  rejected  by  the  convention.  The  age  limit  of 
seventy  years  was  retained,  but  the  system  of  pensions  for  retiring 
judges  was  abandoned.  An  amendment  shortening  the  terms  of  judges 
from  fourteen  to  eight  years  was  defeated  by  a  large  majority. 

The  statutory  pro\ision  limiting  the  right  of  recovery  for  injuries 
causing  death  to  §r),000  was  done  away  with.  Another  important 
change  of  somewhat  similar  character  w-as  the  abrogation  of  the  pe- 
cuniary limitation  of  $500  formerly  fixed  for  cases  appealable  to  the 
Court  of  Appeals. 

'  Louis  Marshall,  in  the  X.  Y.  World,  October  7,  1894. 


176 


HISTORY    OF  THE  BENCH   AND   BAR   OF  NEW  YORK 


The  political  and  judiciary  alterations,  whicli  we  have  sketched  in 
brief,  constitute  the  distinctive  features  of  the  new  constitution.  Its 
miscellaneous  provisions  are  of  comparatively  little  interest.  The  most 
conspicuous  is,  probably,  the  prohibition  of  the  contract  system  of  con- 
vict labor.  This  amendment  took  effect  on  the  1st  of  January,  1897. 
Other  amendments  worthy  of  notice  prohibit  the  use  of  public 
money  or  credit  for  the  aid  of  sectarian  schools ;  divide  cities  into 
three  classes,  the  first  class  being  composed  of  those  having  250,000 
pojoulation  or  more,  the  second,  of  those  having  from  50,000  to  250,000, 
and  the  third,  of  all  others ;  authorize  the  legislature  to  care  for  the 
improvement  of  the  canals,  without,  however,  borrowing  money  for  the 
purpose  unless  the  people  expressly  authorize  it :  make  stockholders 
in  banking  corporations  individually  liable  to  the  amount  of  their 


stock  ;  perpetually  prohibit  the  sale  or  leasing  of  public  lands  in  the 
forest  preserve  or  the  cutting  of  timber  thereon  ;  and  provide  for  a 
naval  as  well  as  a  land  force  of  militia. 

The  long  protracted  controversy  about  the  "  proposed  civil  code  " 
was  brought  to  an  end — so  far,  at  least,  as  its  constitutional  bearings 
were  concerned— by  eliminating  that  section  of  the  constitution  of 
1846  which  related  to  the  codification  of  the  laws.  No  allusion  what- 
ever is  made  to  the  code  question  in  the  new  constitution.  The  status 
of  the  law  of  the  state  is  thus  defined  : 

Such  parts  of  the  common  law,  and  of  the  acts  of  the  legislature  of  the  Colony 
of  New  York,  as  together  did  form  tlie  law  of  the  said  colony  on  the  19th  day  of 
April,  1775,  and  the  resolutions  of  the  congress  of  the  said  colony,  and  of  the  con- 
vention of  the  State  of  New  York,  in  force  on  the  20th  day  of  April,  1777,  which 
have  not  since  expired  or  been  repealed  or  altered;  and  sucii  acts  of  the  legislatui-e 
of  this  state  as  are  now  in  force  shall  be  and  continue  the  law  of  this  state,  subject 


iiisioKV  OK   I'lii':  m:.N(  II   am>  n.wi  (•!•    .m;\v   M)i:k  177 

to  sucli  iiltcnilioiis  as  tlic  h-M-islaliiir  sliall  mal<r  coiiccrniiitr  the  sam.v  |!ul  all  sii.li 
parts  of  the  coiinnon  law,  niul  .siu-li  of  (lie  said  ads  or  parts  tlicnof  as  aic  i<|)iijjriiaiit 
to  this  constitution,  are  herehy  abrogutetl. ' 

The  coiistitiitioii  \v;is  submitted  to  the  peoph^  for  tlioir  adoption  or 
rejection  on  Novenibei*  (5,  1W)4.  The  apportionment  and  canal-improve- 
ment amendments  were,  however,  referred  as  separate  propositions. 
The  ]H)puhir  vote  resulted  as  follows:  For  the  main  body  of  tlie  con- 
stitution, 410,669,  against,  ;^27,4()2  ;  for  the  legislative  apportionment 
amendment,  404,835,  against,  8no,625  ;  for  the  cuual-improvemeut 
amendment,  442,998,  against,  327,645. 

»  Art.  1.,  8CC.  10. 


LEGAL  EDUCATION  IN  NEW  YORK. 


HE  history  of  legal  education  in  the  state  of  New  York 
exhibits  peculiar  and  interesting  conditions  of  growth  and 
development.  "Until  recently,"  said  a  well-known  Avriter 
(in  1878),  "  instruction  in  the  law  in  the  United  States  has 
been  given  for  the  most  part  in  the  offices  of  practicing  lawyers."  The 
Hon.  David  J.  Brewer,  of  the  United  States  Supreme  Court,  noted  in  a 
paper  read  before  the  American  Bar  Association  in  1895  that  "  it  was 
many  years  after  the  settlement  of  the  colony  (of  Massachusetts)  before 
anything  like  a  distinct  class  of  attorneys-at-law  was  known.  And," 
he  continued,  quoting  from  Washburn's  "  Judicial  History  of  Massa- 
chusetts," "  it  is  doubtful  if  there  were  any  regularly  educated  attor- 
neys who  practiced  in  tlie  courts  of  the 
colony  during  its  existence." 

In  a  very  early  history  of  New  York, 
written  in  1756,  the  author,  William  Smith, 
afterwards  chief-justice  of  Lower  Canada, 
calls  attention  to  the  fact  that  the  door  of 
admission  into  practice  of  the  Supreme 
>■"  Court  of  the  State  of  New  York  is  too 
""'''■''''■  open,  and  he  says  "  the  usual  preparations 
are  a  college  or  university  education,  and  three  years'  apprentice- 
ship ;  or,  without  the  former,  seven  years'  service  under  an  attor- 
ney. In  either  of  these  cases  the  chief-justice  [who,  by  the  way, 
it  may  be  stated,  was  at  that  time  James  De  Lancey]  recommends  the 
candidate  to  the  Governour,  who  thereupon  grants  a  license  to  practice 
under  his  hand  and  seal  at  arms.  This  being  produced  to  the  court, 
the  usual  State  oaths  and  subscriptions  are  taken  together  with  an 
oath  for  his  upright  demeanor,  and  he  is  then  qualified  to  practice  in 
every  Court  of  the  Province.  Into  the  County  Courts,  attornies  are 
introduced  with  still  less  ceremony,  for  our  Governours  have  formerly 
licensed  all  persons  how  indifferently  so-ever  recommended,  and  the 
profession  has  been  shamefully  disgraced  by  the  admission  of  men  not 
only  of  the  meanest  abilities,  but  of  the  lowest  employments." 

Thus  early  do  we  find  recorded,  and  much  earlier  doubtless  there 
existed,  a  dissatisfaction  in  regard  to  the  preparation  of  members  of 
the  bar  for  the  work  they  were  to  engage  in. 

There  is  no  reason  to  believe  that  prior  to  the  Revolution  any 
particular  scheme  of  legal  education  existed  in  the  Colony  of  New 
York. 


CROWN  ON  COLUMBIA 


iiisn 


HKNCII     AM)    km: 


:w   v<>i;k 


17!> 


Chief-.Tiisti(U'  Sliai'swood,  in  liis  piclaloiv  iiifni-oir  of  I')l:i(k^iwii«-, 
remarks  (IHa!)):  "It  may  bo  enoii^h  to  .say  that  tlic  vvIujIc^  Ixjdy  of 
Amerifan  lawyers  and  advocates,  with  very  few  exceptions,  since  the 
Uevohition  have  drawn  tlieir  first  lessons  in  jiirispi  iidrnc*'  from  llie 
l)ages  of  Blackst(me\s  Commentaries." 

It  is  certain  that  no  system  similar  to  the  Inns  of  Court,  with 
either  its  <ro()d  or  bad  features,  existed  on  this  side  of  the  Atlantic. 
The  fact  is  that  while  in  sporadic  cases  a  clerkship  with  a  judge  or 
practicin<j^  attorney  really  brought  with  it  direction  as  to  the  line  of 
study,  and  heli)  in  api)lyin,i;;  knowledge  thus  acquired,  the  rule  was 
that  a  num's  development  de])ended  on  himself.  The  i)ersonal  e(piation 
was  everything.  As  Lord  Campbell  once  remarked,  "  He  who  is  not  a 
good  lawyer  before  he  comes  to  the  bar  will  never  be  a  good  one  after 
it."  Thus  our  early  generation  of  lawyers  were  men  who  had  to  grap- 
ple for  themselves  with  principles  of  law,  and  with  the  cases  in  which 
those  principles  had  been  applied. 

While  this  system  was  lax  and  bad,  and  bore  its  legitimate  fruit, 
nevertheless  strong 
men  and  great  lawyers 
were  not  lacking  under 
the  old  regime.  Nor 
was  the  bar  as  a  w^iole 
weak ;  its  equal  was 
not  probably  to  be 
found  in  the  country. 
But  weak  men  and 
bad  men  could  get  in — 
that  was  the  unfortu- 
nate feature  ;  in  fact, 
they  could  not  easily 
be  kept  out,  so  few  were  the  safeguards. 

The  roster  of  the  early  bar  of  New  York  was  small,  but  contained 
some  great  names. 

Thus,  Valentine  in  his  "  History  of  the  City  of  New  York  "  (pub- 
lished in  1853)  gives  a  very  interesting  list  of  attorneys  who  practiced 
in  New  York  City  between  1695  and  the  Revolutionary  "War.  They 
hardly  exceed  a  score  in  all.     Among  them  we  note 

In  1697,  David  Jamison,  "Gentleman." 

In  1698,  James  Emott,  "Gent,  and  Atty.  at  Law." 

In  1702,  Jolin  Bridges  LL.D.  "in  suit  of  Gov.  Cornbury." 

In  1748,  William  Livingston,  afterwai'd  Governor  of  the  State  of  New  Jersey, 
and  together  with  the  historian  William  Smith,  above  quoted,  joint  editors  of  the 
Colonial  Statutes  (Edition  of  1752). 

In  1768,  Benjamin  Kissam. 

In  1769,  Richard  Harrison ;  of  whom  Chancellor  Kent  remarked  that  he  was 
a  "  scholar  of  the  first  order,  and  after  the  age  of  70,  he  was  studying  the  more 
obscure  and  minor  Greek  poets  with  the  ardor  of  youth." 


COLtTMBIA   COLLEGE   IN    IT 


180 


HISTORY    OF   THE  BENCH  AND   BAR  OF   NEW  YORK 


Philip  Livingston,  Jr. 

Thomas  Jones. 

Philip  J.  Livingston. 

John  William  Smith 

John  D.  Crimshire. 

David  Matthews. 

Samuel  Jones;  the  recorder  of  the  City  and  "patriarch  of  the  profession." 

A  sharp  contrast,  this  list,  to  what  Mr.  David  Dudley  Field,  in  a 
public  address  delivered  some  ten  years  ago,  called  attention  to,  torwit, 
that  in  the  State  of  New  York  alone  there  were  then  over  11,000 
lawyers ! 

The  venerable  Benjamin  D.  Silliman,  whose  address  at  the  memo- 
rable dinner  given  him  by  the  New  York  City  bar.  May  24,  on  the 
sixtieth  anniversary  of  his  admission  as  an  attorney,  is  reproduced  in 
this  volume,  made  the  following  interesting  statement  on  that  occasion : 


It  was  easier  to  become  a  thoroughly  learned  lawyer  in  those  earlier  days  than 
it  is  now.  There  wa^  then  less  of  law  to  be  learned,  and  there  was  more  of  time  in 
which  to  learn  it.  The  world  was  not  in  such  a  hurry  then.  Kent  and  Hamilton 
and  Spencer  and  Burr  and  Harrison  and  Wells  and  Emmett  and  Hoffman  and 
Jones,  and  their  cotemporaries,  had  few  books  to  study.  Their  libraries  could  almost 
stand  on  their  mantels.  They  drew  their  knowledge  from  Plowden,  Coke,  Lyttle- 
ton,  the  Year  Books,  Grotius,  Puffendorf,  Vattel,  Emerigon,  as  well  as  Blackstone, 

the  fountains  of  the  law When  Chancellor  Kent  was  admitted  to  the  bar 

in  1785  there  tvas  not  a  solitary  volume  of  reports  of  any  court  in  this  country. 

In  1867  the  same  distinguished  lawyer  addressed  the  graduating 
class  of  the  Law  School  of  Columbia  College,  and  thus  described  the 
educational  facilities  of  the  earlier  days : 

Widely  dift'erent  have  been,  with  few  exceptions,  the  opportunities  of  legal 
instruction  in  this  country  until  within  a  comparatively  recent  period.  The  student 
was  requii-ed  to  enter  the  office  of  a  practicing  attorney,  and  there  to  pursue  his 


IllsrolJV    ol'     IIIK    IJKiVCIl     AM>    ItAi;    (»!••    MiW      VnKK  1  ,S  1 

studios,  rio  was  iil  oiico  (•ii;,'-ut,'-('(l  in  tin'  i)i-:icti<-c  of  llial  of  uliicli  lie  li.nl  not  lc:iiii<<l 
till!  priiicii)los.  Ho  iM-cainc  fiimiliitr,  l)y  daily  ()i)scr%'a(i(ni  and  as  a  ('opyist,  witli 
tho  forms  of  fonvoyaiiciiifi:  and  the  pliras('o!(>t,'-y  of  i)l»'adin^,  witiiout  nndcrsland- 
in<;  their  itnison.  The  proper  t)r(l('r  of  iiis  instruction  was  inverted.  Biackstones 
Commentaries  and,  at  a  later  period,  Kent's  (and  sonietiines  other  elementary 
works)  were  jjlaced  in  his  hands  for  perusal  in  the  intervals  of  oflice  business  ;  but 
there  was  peireptible  to  him  little  itdation  between  their  contents  and  the  daily 
routine  of  his  clerical  duties.  As  a  freneral  rule,  it  was  impossible  for  the  attorney 
in  wliose  ollicc  the  student  was  enpaffed  to  give  any  material  atU'iition  to  his 
studies,  and  his  pi'ogress  and  attainments,  therefore,  lacked  system,  and  were  slow, 
confused,  and  uncertain.  A  formal  and  superficial  examination  at  length  passed 
him  to  the  bar,  and  be  could  rarely  feel  at  home  in  his  profession  until  he  had 
acquirt>d,  by  subsequent  laborious  and  anxious  practice,  a  knowledge  of  very  much 
that  he  should  have  attained  at  the  outset.  He  was  thus  obliged,  at  great  disad- 
vantage, to  lay  a  large  part  of  the  foundation  of  his  house  after  he  had  toiled  long 
upon  the  superstructure. 

And  in  1854  John  Anthon  wrote  that  the  "  fancied  facility  of  be- 
coming a  lawyer,  which  has  its  origin  in  our  iinfortimate  constitution^ 
fostered  by  an  ahiKJst  indiscriminate  admission  derived  from  the  same 
source,  has  crowded  our  courts  of  justice  with  nninstriicted  advocates 
who  have  been  thus  cruelly  deceived  into  positions  painfully  demon- 
strating- the  poverty  of  their  resottrces." 

The  clause  in  the  constitution  to  which  the  learned  writer  referred 
is  article  vi.,  section  8,  of  the  constitution  of  1840,  providing  that  "any 
male  citizen  of  the  age  of  twenty-one  j'ears,  of  good  moral  character, 
and  who  jjossesses  the  requisite  qualifications  of  learning  and  ability, 
is  entitled  to  admission  to  practice  in  all  the  courts  of  this  state." 

To  show  the  force  of  Mr.  Anthon's  criticism  just  noted,  a  brief 
review  of  the  successive  regulations  adopted  by  the  Supreme  Court  of 
New  York  in  regard  to  the  admission  of  persons  to  practice  before  the 
courts  of  the  state  will  be  in  order. 

At  the  October  Term  of  the  court  in  1797  the  court  prescribed  cer- 
tain qualifications  and  requirements  for  admission,  and  first  Avas  a 
seven-years'  clerkship  Avith  a  practicing  attorney.  Btit  it  was  provided 
that  if  after  the  applicant  had  attained  the  age  of  fourteen  he  should 
have  pursued  "  classical  studies  "  for  four  years  or  less,  such  time  act- 
ually occupied  could  be  deducted  from  the  seven-years'  clerkship. 
But  any  such  deduction  had  to  be  certified  and  allowed  by  a  justice  of 
the  court  after  inquiry  into  the  facts  and  the  entry  of  an  order  in  the 
premises  reciting  the  circumstances  and  specifying  the  time  to  be 
allowed.  These  rules  further  recognized  a  distinction  between  attor- 
neys and  counsellors  at  law  by  providing  that  after  four-years'  practice 
as  an  attorney  one  should  be  entitled,  of  course,  to  practice  as  counsel. 
Rule  III.  eiui)hasized  this  by  providing  that  "No  person  who  shall  be 
admitted  to  x>ractice  as  counsel  shall  thereafter  practice  also  as  an 
attorney."     This  distinction  was  not  long  after  done  away  with. 

At  the  November  Term  in  1803  it  was  ordered  "  That  every  person 
who  shall  have  regularly  pursued  juridical  studies  under  the  direction 


182  HISTORY    OF   THE   BENCH    AND   BAR   OF   NEW   YORK 

or  instruction  of  a  professor  or  counsellor  at  law  within  this  state  for 
four  years,  or  shall  have  been  admitted  to  the  degree  of  counsellor  at 
law  in  any  other  of  the  United  States  (and  practiced  as  such  for  four 
years  in  that  state)  shall  be  admitted  as  counsel  in  this  state,"  thus 
annulling  the  rule  theretofore  obtaining.  In  the  following  year,  at  the 
November  Term,  Rule  III.  of  1797  was  amended  by  allowing  attorneys- 
at-law  to  become  counsel,  of  course,  after  three  years'  practice  instead 
of  four. 

At  the  August  Term,  1806,  the  court  adopted  a  rule  admitting  only 
such  as  should  be  natural-born  or  naturalized  citizens  of  the  United 
States. 

Passing  over  minor  modifications  we  come  to  the  rules  adopted  at 
the  October  Term  in  1829,  to  take  effect  January  1,  1830,  which  pro- 
vided that  no  one  should  practice  except  after  a  regular  admission  and 
license  by  the  Supreme  Court.  The  seven-years'  clerkship  was  retained, 
as  well  as  the  allowance  of  four  years  or  less  for  time  actually  occupied 
in  the  pursuit  of  classical  studies,  if  evidenced  in  an  order  of  a  judge 
of  the  court  after  inquiry.  The  certificate  of  the  attorney  with  whom 
the  clerkship  was  served  was  required  to  be  filed,  and  from  its  filing 
the  time  of  clerkship  dated.  After  three  years'  practice  as  an  attorney 
a  lawyer  might  be  admitted  as  counsel,  not,  as  formerly,  "  of  course," 
but  "  if  he  be  found  to  be  duly  qualified."  The  citizenship  requirement 
was  also  continued.  In  1837,  some  difficulties  having  been  occasioned 
by  varying  rulings  as  to  what  was  proof  of  a  pursuit  of  classical  studies 
sufficient  under  the  rule,  the  court  provided  at  length  what  should  con- 
stitute such  proof,  and  the  rules  contained  for  the  first  time  a  most 
interesting  provision,  to-wit,  that  ^^  Any  portion  of  time  not  exceeding 
two  years  spent  in  regular  attendance  upon  the  law  lectures  in  the 
University  of  New  York  "  should  be  allowed  in  lieu  of  an  equal  por- 
tion of  clerkship. 

This  is  the  first  oflUcial  recognition  of  the  function  of  the  law 
school  as  an  element  in  juridical  studies,  and  affords  a  fitting  opening 
for  a  digression  by  way  of  inquiry  into  the  history  of  the  law  schools 
of  the  state.  Two  years  before  this  Mr.  Benjamin  Butler,  attorney- 
general  of  the  United  States,  had,  at  the  request  of  the  council  of  the 
New  York  University,  submitted  to  Chancellor  Mathews  a  "  Plan  for 
the  organization  of  a  law  faculty  in  the  University  of  the  City  of  New 
York,"  in  which  he  stated  for  the  information  of  those  "  who  may  be 
unacquainted  with  the  present  state  of  legal  education  in  New  Y'ork," 
that  at  that  time  no  other  facilities  for  acquiring  a  legal  education  ex- 
isted than  those  afforded  by  clerkships  in  the  oflfices  of  the  practicing 
attorneys  and  solicitors.     He  continued  in  the  following  summary  : 

In  the  year  1793  Chancellor  Kent,  then  at  the  bar  of  this  city,  was  appointed 
professor  of  law  in  Columbia  College,  and  subsequently  delivered  law  lectures  to 
students  in  that  institution.  His  appointment  in  1798  to  the  bench  of  the  Supreme 
Court  of  this  state,  and  his  subsequent  removal  to  the  seat  of  government,  with- 


)K     llll':    U1.N( 


II'    M  \\      'iol.-K 


l.s:{ 


,liv\v  liiiii    IVom    tlic   profcssorsliip  ami    l"nr  a    I<,i,^r   srasoii    (■mi)l<.y.-(l   liiiri    in    ..llirt- 
iliitifs. 

Oil  tlu>  ("xpiratioii  of  liis  ollicc  as  (•liaii(fll..i-  ol"  llif  stair  in  |sv':i  lie  nlnrnrd  lo 
this  oily,  rcsiiiiicd  liis  station  as  iji-ofcssor  in  llic  collcjic,  anil  in  tlif  coins.' of  lln-fd 
or  four  yi'Jirs  dclivt'it'd  to  a  class  of  law  students  tlio  lectures  since-  pidtlLslied  by  liiiii 
ill  his  invaluiible  "Coniinentaries  on  American  Law."  Ills  lal^oi-s  an,  professor  liavc 
for  several  years  been  discontinued,  und,  it  is  undei-stood,  are  not  to  be  resumed. 
There  has  never  been  any  jniblic  law  school  in  this  state,  except  that  conuecUid  with 
Columbia  Collefj-c  durin;^-  the  continuance  of  Chancellor  Kent's  lectures.  In  a  few 
instances,  {gentlemen  of  th(>  bar  who  had  i-elired  from  the  active  laboi-s  of  the  pro- 
fession have  devoted  them.srlves  to  the  instruction  of  small  clas.ses  of  law  students. 


The  most  distinguished,  and  probably  the  most  useful  of  these  private  institutions, 
was  that  of  the  late  Peter  Van  Schaak,  of  Kinderhook.  This  eminent  lawyer  died 
in  1832  at  the  advanced  age  of  eighty-four,  and  I  am  not  aware  that  there  is  now 
any  private  law  school  in  the  state. 

Coui-ses  of  lectures  on  particular  branches  of  the  law  have  also  been  occasion- 
ally given  in  the  City  of  New  York  by  members  of  the  bar  specially  selected  for  the 
purpose  by  voluntary  associations. 

Instruction  in  laic  offices  is  necessarily  quite  imperfect.  A  coiu^e  of  reading 
is  usually  marked  out  for  the  student,  and  if  he  be  industrious  and  attentive,  he  will 
have  opportunities  to  acquire  considerable  knowledge  of  the  practice.  But  as  gen- 
tlemen engaged  in  extensive  business  can  seldom  find  time  to  pay  much  attention 


184  HISTORY   OF   THE   BENCH   AND   BAR   OF   NEW    YORK 

to  the  improvement  of  their  clerks,  the  progress  of  the  latter  in  the  principles  of 
legal  science  is  usually  tardy  and  laborious.  In  many  cases  they  are  left  to  grope 
their  way  in  the  dark,  with  little  or  no  assistance  from  the  principals.  And  even 
where  this  disadvantage  is  not  experienced,  the  means  of  instruction  in  a  law  office 
will  yet  be  found  too  limited  to  meet  the  wants  of  the  student.  Tlie  consequence  is 
that  many  of  our  attorneys  and  solicitors  ichen  licensed  are  very  ill-qualified  for 
the  duties  of  their  profession  ;  and  thougli  they  may  afterwar-d,  hy  proper  exer- 
tions, acquire  sufficient  to  guide  them  in  the  performance  of  their  duties,  much  of 
this  knowledge  will  have  been  gained  by  slow  degrees,  and  sometimes,  it  may  be 
feared,  at  the  expense  of  their  clients. 

By  the  courtesy  of  Mr.  William  Allen  Butler  the  writer  is  enabled 
to  quote  from  the  minutes  of  the  council  of  the  university  the  follow- 
ing extract  of  a  resolution  made  after  the  plan  prepared  by  his  distin- 
guished father  had  been  submitted  to  the  university  : 

At  a  meeting  of  the  council  held  June  2, 1835,  at  the  historic  build- 
ing in  Washington  Square,  it  was 

Resolved,  That  this  council  do  fully  approve  of  the  plan  now  submitted  by  the 
Honorable  Benjamin  F.  Butler  for  the  organization  of  the  lawfaculty,  and  that  the 
same  be,  and  hereby  is,  adopted  by  this  council,  subject  to  such  modifications  as  may 
hereafter  be  deemed  advisable. 

Subsequently  he  was  elected  unanimously  principal  professor,  and 
entered  upon  the  duties  of  his  position  in  March,  1838,  the  primary 
and  Junior  departments  of  the  proposed  law  school  having  been  pre- 
liminarily organized.     The  faculty  consisted  of  three  : 

Benjamin  P.  Butler,  professor  of  general  law  and  the  law  of  real 
property,  and  principal  of  the  faculty  ; 

William  Kent,  professor  of  the  law  of  persons  and  of  personal 
property ; 

David  Graham,  Jr.,  professor  of  the  law  of  pleading  and  practice. 

Shortly  after  the  inauguration  of  this  distinguished  faculty,  whose 
addresses  were  published  in  pamphlet  form,  and  are  most  interesting 
and  instructive,  the  university  became  financially  embarrassed.  Doc- 
tor Mathews  was  succeeded  as  chancellor  by  Honorable  Theodore  Fre- 
linghuysen.  The  law  school  seemed  to  be  in  advance  of  the  require- 
ments of  the  time.  It  could  not  be  carried  on  upon  its  originally  pro- 
jected scale.  But  it  remained  alive,  attracting  some  students,  develop- 
ing under  the  superintendence  of  the  learned  and  cultivated  John 
Morton  Pomeroy  and  the  great  jurist.  Henry  E.  Davies  ;  occupying  a 
high  plane  of  practical  helpfulness  under  David  R.  Jacques,  LL.D., 
such  that  the  Honorable  Noah  Davis,  after  a  long  service  as  presiding 
justice  of  the  Supreme  Court  in  the  1st  department,  remarked  to  the 
writer  in  1888  that  its  graduates  came  to  the  general  term  examinations 
better  equipped  in  the  practical  law  than  any  others  ;  reaching  its 
highest  success  under  the  late  lamented  Austin  Abbott,  the  foremost 
legal  educator  of  the  century  (by  whom  it  was  expected  this  article 
should  liave  been  written,  and  whose  system  of  instruction  the  writer 
has  described  in  a  recent  issue  of  the  American  University  Magazine). 


»K  'iiiK  I!i:n(II   am 


•  I'   N  I ; w    ^  <  1 


is: 


nowcvcr,  MS  will  linvc  Ix.hmi  seen  fi'oiii  tiic  cxtriicl  :il>()V<'  sd  forllu 
this  law  school  did  not  piclond  to  be  the  lirst,  althoii^di  it  was  tlw  lirst 
whose  scheme  of  instruction   was  approved  in  the  rules  of  the  court. 


vlv/!^<^ 


For  example,  the  Litchfield  Law  School  in  Connecticut  had  been 
established  in  1784  and  lived  about  fifty  years,  and  under  Mr.  Reeve 
and  Judge  Gould  had  trained  many  of  the  New  England  bar.  And 
Harvard  College  had  established  a  law  school  in  1817 ;  and  Joseph 


186  HISTORY   OF  THE   BENCH    AND   BAR   OF   NEAY   YORK 

Story,  writing  in  the  North  American  Revieio  in  1817,  reviewing  a 
"Course  of  Legal  Study,"  Avhich  had  been  suggested  by  Professor 
Hoffman  of  the  University  of  Maryland,  emj^hasized  "  the  importance, 
nay  the  necessity,  of  the  law  school  which  the  governors  of  Harvard 
College  had  so  honorably  to  themselves  established  at  Cambridge," 
and,  he  continued,  "  no  work  can  sooner  dissipate  the  common  de- 
lusion that  the  law  may  be  thoroughly  acquired  in  the  immethodical, 
interrupted  and  desultory  studies  of  the  office  and  practicing  coun- 
sellor." Such  a  situation  he,  however,  ackowledges  is  indispensable 
after  the  student  shall  have  laid  the  foundation  in  elementary  prin- 
ciples under  the  guidance  of  a  learned  and  discreet  lecturer.  It  was 
this  law  school  which  the  scholarly  Simon  Greenleaf  in  1842  referred 
to  in  dedicating  his  "  Treatise  on  Evidence  "  to  Joseph  Story  himself 
as  "  the  crowning  benefit  which,  through  your  instrumentality,  has 
been  conferred  on  our  profession  and  country." 

The  law  school  of  Columbia  College  was  more  significantly  a 
"  school  of  law,"  perhaps,  than  any  other  in  this  state.  Deriving  its 
first  prominence  from  the  devoted  labors  of  James  Kent,  it  acquired 
its  highest  reputation  after  its  regeneration  in  1858  under  Theodore 
W.  Dwight,  who  came  from  Hamilton  Law  School,  and  whose  well  and 
widely  known  personal  influences  were  such  as  to  enable  him  in  a 
peculiar  measure  to  impart  to  others  that  which  he  himself  knew  so 
well. 

His  system,  named  by  his  name,  is  a  common-sense  method  of  in- 
structing the  student  in  the  science  he  is  investigating  and  of  adding 
enthusiasm  to  ambition  for  knowledge.  He  has  himself  most  in- 
terestingly described  his  own  work,  and  justified  his  methods  in  an 
article  written  for  the  Green  Bag  in  April,  1889,  to  which  little  can  be 
added. 

About  the  same  time  that  Mr.  Butler  prepared  the  "  plan  "  for  a 
law  school  above  referred  to,  Mr.  John  C  Spencer  (who  was  associated 
with  Mr.  Butler  and  Mr.  Duer  in  the  revision  of  the  statutes  of  the 
state)  prepared  a  plan  for  a  law  school  at  Hamilton  College,  from 
which  school,  as  has  been  noted,  Doctor  Dwight  was  later  on  called 
to  Columbia. 

In  1851  the  Albany  Law  School  was  organized  as  a  component 
part  of  the  "  University  of  Albany,"  created  by  special  act  of  the 
legislature  in  that  year.  In  1873  this  institution  united  with  Union 
University,  and  the  law  school  is  now  a  department  of  the  latter. 

Mr.  Irving  Browne,  who  has  predicted,  most  characteristically,  that 
"  if  Macaulay's  New  Zealander  shall  ever  take  his  seat  on  a  broken 
arch  of  the  Hudson  River  railroad  bridge  to  sketch  the  ruins  of  the 
capitol,  the  Albany  Law  School  will  still  be  in  full  vigor  and  pros- 
perity," takes  no  account  of  the  facts  above  recited  when  he  records 
that  the  only  competitors  of  the  Albany  Law  School  when  it  was 
founded  were  Harvard  and  Yale. 


IIISIOKV    (11'     IIIK    IlKNCIl     AM)    H.Wl    (>K    N  i;\V     VoKK  IS? 

It  was  iiol  until  M:iy  ;{(),  184;-),  tli:it  tli.-  Siipivin.-  Court  <.f  llii.s 
state  auiciulcd  the  lulcs  lor  admission  of  attorneys  so  as  lo  allow  if/ia 
i/((U\  on  account  ol"  the  clcrksliii)  to  be  served,  for  time  spent  in 
regular  attendance  upon  the  law  hu'tures,  not  only  of  tlie  New  York 
University,  but  also  of  "(Cambridge  I'niversity  or  the  law  school  con- 
nected with  Vale  C:!olle<:;e." 

Hut  Mr.  lirowne  is  ri^lit  in  point inii-  out  that  siibsecpientl}-  to  the 
constitution  of  184<)  it  was  enacted  that  the  dijjloma  of  the  Albany 
Ijaw  School  should  entitle  the  holder  to  admission  to  ])ractice  without 
any  examination  at  bai'.  No  wonder  John  Anthon  made  the  lament 
above  quoted  when  the  historiograjjlier  of  fliis  school  himself  char- 
acterizes this  as  "  loose." 

This  school  has  ii  glittering  roll  of  names  in  its  faculty  register, 
from  (Chancellor  Walworth,  its  first  president,  including  Ira  Harris, 
Amos  Dean,  Amasa  .1.  Parker,  and  .Indge  \Villiam  F.  Allen,  down  to 
George  \V.  Kirchway,  \Villiani  A.  Learned,  Matthew  Hale,  Judson  S. 
I^andon,  Charles  T.  F.  Spoor,  Iliram  E.  Sickels,  Irving  Browne,  Na- 
thaniel (\  Moak  and  James  AV.  Eaton,  Jr.,  its  present  faculty. 

The  Buffalo  Law  School,  founded  in  1S87,  and  the  New  York 
Law  School,  founded  on  the  resignation  of  Professor  Dwight  from 
Columbia  in  1891,  are  still  in  their  minority,  but  each  has  made  a 
place  for  itself.  So  also  the  Metropolis  Law  School,  which  initiated 
the  practice  of  evening  sessions,  which  attained  a  well-deserved  popu- 
larity, but  is  now-  merged  in  the  New  York  University  Law  School  as 
its  evening  department,  and  the  former  head  of  which,  Clarence  D. 
Ashley,  has  recently  been  elected  to  succeed  the  lamented  Austin 
Abbott  as  dean  of  the  joint  schools. 

The  law  school  of  Cornell  University  is  the  last  one  of  the  New 
York  State  law  schools  to  which  we  can  refer. 

The  original  faculty  of  the  school,  which  opened  in  the  autumn  of 
1SS7,  had  for  its  dean  the  Honorable  Douglas  Boardman,  fonnerly  a 
partner  of  Judge  Finch,  now  of  the  Court  of  Apjjeals,  and  himself 
until  1887  a  justice  of  the  Supreme  Court.  With  him  were  associated, 
as  professors,  Harry  B.  Hutchins,  Charles  A.  Collin,  Francis  M.  Bur- 
dick,  Moses  Coit  Tyler,  and  Herbert  Tuttle  ;  while  as  non-resident 
lecturers  were  secured  the  Honorable  Francis  M.  Finch,  Honorable 
Daniel  Chamberlain,  Honorable  William  F.  Cogswell,  and  the  Honor- 
able Theodore  Bacon.  This  school  has  avoided  committing  itself  to 
any  distinctive  method  of  instruction,  unless,  as  has  been  said,  "  in- 
struction of  the  more  advanced  students  by  means  of  the  study  of 
specially  selected  cases  be  enough  to  constitute  a  special  system."  It 
has  a  well-defined  position  and  a  high  reputation  due  to  the  character 
not  only  of  its  instructors  but  of  its  graduates  as  well. 

But  while  the  reference  in  the  rules  of  1837  to  the  law  school  of 
the  University  of  New  York  started  us  upon  this  digression,  enough 
has  been  detailed  to  serve  the  purposes  of  this  article,  if  we  add  by 


188 


HISTOKY  or  THE  BENCH  AND  BAR  OF  NEW  YORK 


way  of  summary  the  suggestion  that  by  reason  of  competitiA'e  and 
other  stimuhitive  influences,  and  under  the  wise  counsel  of  deliberative 
bar  associations,  the  law  schools  of  this  state  are  advancing  to  a  more 
perfect  system  and  method  of  instruction.  The  lawyer  of  the  twentieth 
century  will  be  withoiit  excuse  if  he  be  not  trained  beforehand  for  the 
efficient  performance  of  his  professional  duties. 

As  the  associate  dean  of  the  Cornell  Law  School  said  in -January, 
1894:,  before  the  State  Bar  Association,  this  state  is  now  far  in  advance 
of  most  of  her  sister  states  in  the  matter  of  requirements  for  admis- 
sion to  practice. 

The  functions  of  the  section  of  legal  education  of  the  American 
Bar  Association  would  form  a  most  tempting  field  for  another  digres- 
sion. But  the  writer  must  content  himself,  considering  the  limitations 
placed  upon  this  article,  with  referring  to  the  annual  reports  of  that 
great  association.  It  serves,  as  do  also  the  various  state  bar  associa- 
tions,  as  a    great   educational   factor    along  the  lines  of    '*  forensic 

duties"  and  "  professional  ethics,"  two 
subjects  much  emphasized  in  Mr.  But- 
ler's *'plan,"  and  is  therefore  not  to 
be  ignored  in  a  sketch  of  the  growth 
of  legal  education. 

To  resume,  the  rules  of  court  were 
somewhat  modified  in  1858  at  the 
August  Term,  pursuant  to  section  470 
of  the  code  of  1852.  These  changes, 
tlie  wa-iter  believes,  were  instituted  by 
the  court  in  consequence  of  a  report 
made  by  the  then  committee  on  ad- 
missions in  the  1st  department,  call- 
ing attention  to  the  lamentable  lack 
«..v  ...KK  ....t..  ,.B„.Rv,  1795.  ^^  p^^p^^.  preparation  on  the  part  of 

those  applying  for  examination.  The  rules  were  made  stricter  in  view 
of  certain  abuses  which  had  crept  in  and  to  which  attention  was  called 
in  said  report.  All  applicants  were  to  be  examined  in  open  court 
before  the  general  terra  on  specified  days,  "  and  at  no  other  time  or 
place,"  and  no  private  examinations  were  to  be  permitted. 

Then,  also,  for  the  first  time,  the  subjects  upon  which  satisfactory 
examination  should  be  had  were  specified.  This  is  notable  as  marking 
a  great  step  forward  in  legal  education  and  in  raising  the  standard  of 
professional  attainments.  The  subjects  required  were :  Law  of  Real 
and  Personal  Property,  Contracts,  Partnerships,  Negotiable  Paper, 
Principal  and  Agent,  Principal  and  Surety,  Insurance,  Executors  and 
Administrators,  Bailments,  Corporations,  Personal  Rights,  Domestic 
Relations,  Wills,  Equity  Jurisprudence,  Pleadings,  Practice,  and 
Evidence. 

With  the  more  recent  requirements  the  reader  is  familar  and  has 


iiisioKV  OK  nil':  iti:N(ii   and  mm:  oi.    m  u    voitK  is'.j 

ready  Mcccss  to  llic  books  contaiiiiii.u-  lliciii.  l-'or  <'.\:iiii|ilt\  ihc  ^ncat 
clian^^e  in  1871,  when  (he  wlioh^  uiaMer  oC  admission  to  the  bar  was 
placed  nnder  the  control  of  the  Oonrt  of  Apjx'als,  and  Ihe  more  recent 
and  perhaps  more  important  change  of  18!)."),  providin;^-  for  iiiiirorm 
examinations  in  all  the  varions  jndicial  departments. 

It  would  be  interesting  could  the  writer  include  in  liiis  siietch  the 
anecdot<;s  illustrative  of  the  lax  methodsof  examination  and  education 
for  the  bar  of  this  state  which  have  been  narrated  to  liim  by  veteran 
members  of  that  bar  whose  memories  go  back  to  the  constitution  of 
1846  and  earlier.  But  that  would  perliaps  be  out  of  i)lace.  So  also 
the  limits  set  to  such  an  article  as  this  preclude  any  incpiiry  into  the 
early  history  of  legal  education  ;  otherwise  we  could  i-eview  with 
great  profit  the  principles  recognized  by  the  old  Roman  jurists  in  the 
inculcation  of  those  fundamental  rules  of  conduct  that  have  shai)ed 
civilization  and  so  vitally  alfected  the  relations  of  nunikind.  AVe  could 
touch  upon  the  privileges  the  young  law  student  (''auditor")  enjoyed 
in  the  days  when  it  was  held  a  great  honor  to  teach  the  civil  law,  and 
when,  as  Cicero  said,  "  The  houses  of  the  most  eminent  citizens  were 
thronged  with  disciples."  We  could  enlarge  upon  tlie  viewg  Justinian 
entertained  as  to  the  necessity  of  elementary  ground-work  before 
attempting  to  master  practical  huv. 
Comment  would  not  be  uninteresting 
upon  the  claim  that  the  awakening 
of  interest  in  legal  study  in  the  elev- 
enth and  twelfth  centuries  preceded 
rather  than  succeeded  the  improve- 
ment in  the  law  itself — a  reasonable 
and  demonstrable  assertion,  surely. 
A  treatise  could  be,  and  has  been, 
written  upon  the  (/7ossa  and  the  glos- 
sators, and  the  helpful  light  thrown 

on  some  still  surviving  errors  in  method,  illustrated  by  the  experience 
of  these  faithful  specialists. 

But  all  this  has  been  exhaustively  done  by  others.  It  is  clear  that 
for  the  purpose  of  this  brief  resume  we  are  concerned  only  with  such 
local  conditions  and  developments  as  have  been  already  briefly 
summarized. 

The  writer  closes  by  calling  attention  to  the  fact  emphasized  by 
John  Norton  Pomeroy,  that  if  the  necessity  for  a  liberal  education  in 
the  principles  of  the  law  was  great  in  the  case  of  the  educated  youth 
of  England,  as  Sir  AVilliam  Blackstone  insisted,  much  greater  is  it  in 
this  country  because  of  our  methods  and  forms  of  government.  Where 
a  legislature  can  by  its  enactment  change  the  whole  method  of  pro- 
cedure of  a  state,  it  is  surely  important  that  those  who  may  be  elected 
to  serve  in  that  body  be  familiar  with  the  fundamental  princijiles  of 
the  law.     For  as  Chancellor  Kent  once  observed  in  addressing  "  The 


190  IIISTOKY    OF   THE   BENCH    AND   BAR   OF   NEW   YORK 

Law  Association  "  in  New  York  (October  21,  1886),  "■  Legal  learning  is, 
in  a  very  considerable  degree,  indispensable  to  all  persons  who  are  in- 
vited to  administer  any  material  portion  of  the  authority  of  govern- 
ment, and  especially  if  it  becomes  the  province  of  their  trust  to  make, 
amend,  and  digest  the  law  of  the  land,  or  judicially  to  expound  and 
apply  its  provisions  to  individual  cases  in  the  regular  course  of  jus- 
tice." Therefore  we  welcome  the  fact  that  not  only  by  our  law  schools, 
but  in  our  universities,  colleges,  and  even  our  academies,  social  and 
municipal  law  is  generally  diffused  and  men  grow  uj)  into  familiarity 
with  the  principles  of  the  constitution  under  which  they  live,  and  learn, 
by  varying  experiences,  respect  and  fear  for  the  law  by  which  they 
govern  and  are  governed. 


THE  ASSOCFATIOX  OF  Till-:   BAR. 

N  tlio  later  colonial  cliroiiiclps  of  New  York  there  are  few 
thiiius  more  interesting  and  .signiticant  than  the  organized, 
persevering  and  snccessfnl  oi)position  interposed  b}'  the 
legal  profession  to  the  increasing  encroachments  of  the 
British  crown.  As  early  as  1744  the  lawyers  of  New  York  entered 
into  an  association  to  free  the  jndiciary  from  the  exercise  of  the  king's 
prerogative.  Mr.  H.  B.  Dawson,  in  his  tract  on  the  Sons  of  Liberty, 
traces  the  inception  of  that  society  in  New  York  to  the  formation  of 
this  primitive  "  bar  association."  None  of  the  records  of  the  associa- 
tion (so-called)  have  come  down  to  us  ;  and,  indeed,  it  probably  nev^er 
presented  a  i)ublic  character  as  a  formally  officered  body,  but  operated 
quite  spontaneously,  the  bar  as  a  whole  readily  following  the  leader- 
ship of  a  few  active  spirits.  When,  in  1703,  the  royal  lieutenant- 
governor,  Cadwallader  Golden,  undertook  to  enforce  his  novel  dogma 
that  the  governor  and  council  were  entitled  to  review  upon  appeal  the 
findings  of  a  jury  concerning  questions  of  fact,  the  bar  of  New  York 
was  unanimous  in  resistance  to  this  arbitrary  proceeding,  and  it  is  an 
exceedingly  impressive  fact  that  the  lieutenant-governor  was  unable  to 
find  a  single  lawyer  willing  to  argue  his  unjust  cause  when  it  came  to 
be  judicially  tested.  This  unpleasant  experience  led  him,  in  his  corre- 
spondence with  the  home  government,  to  assail  the  "  association  "  of 
the  provincial  bar  with  much  severity.  He  bitterly  complained  that 
the  association  set  up  by  the  profession  of  the  law  in  New  York  was 
exercising  a  most  "  dangerous  influence,"  which  tended  uniformly  to- 
ward ''  inlarging  the  powers  of  the  popular  side  of  government "  and 
"  depreciating  the  powers  of  the  crown  "  ;  and  he  suggested  energetic 
measures  for  putting  an  end  to  the  " Dominion  of  the  Lawyers."' 

This  early  combination  of  legal  practitioners  in  New  Y^'ork  bears, 
of  course,  no  ancestral  relation  to  the  great  Association  of  the  Bar  of 
to-day  ;  but  it  is  interesting  to  recall  that  a  century  and  a  half  ago  the 
New  Y'ork  bar  assumed,  in  a  united  way,  public  functions  very  similar 
to  those  which  have  characterized  the  transactions  of  the  existing 
association  from  the  outset  of  its  career. 

The  commanding  position  held  by  the  bar  in  colonial  times  was 
preserved  for  more  than  half  a  century  after  the  Revolution.  Through- 
out all  that  period  the  power  and  dignity  of  the  legal  profession  were 
too  well  recognized  to  need  special  assertion  of  any  kind.  The  bar  in 
those  days  was  a  public  and  social  establishment  of  the  most  eminent 

'  See  pp.  &4,  90,  of  this  volume. 
191 


192 


HISTORY  OF  THE  BEXCH  AXD  BAR  OF  NEW  YORK 


order,  because,  as  an  entity,  it  stood,  in  universal  estimation,  at  an 
elevation  well  corresponding  to  the  attainments  and  virtues  of  the 
great  men  who  adorned  it. 

The  adoption  of  the  constitution  of  1846  marked  a  new  era  for  the 
bar.  The  ancient  distinctions  between  attorney,  solicitor,  and  coun- 
sellor were  abolished,  and  all  lawyers,  from  the  humblest  to  the  most 
renowned,  were  placed  on  the  same  nominal  footing.  The  qualifica- 
tions for  admission  to  the  bar  were  made  less  exacting,  thus  rendering 
it  not  difficult  for  anyone  to  enter  the  ranks  of  the  profession,  and 
finally  sweeping  alterations  were  made  in  the  judiciary  system,  whereby 
elective  judges  were  substituted  for  appointive.  Moreover,  a  new 
system  of  procedure  shortly  came  into  vogue,  largely  increasing  the 


OLD  TAMMANY   UALL— NOW  OFFICE  OP   THE  NEW  YORK  "SUN. 

discretionary  powers  of  the  judges,  and  bestowing  upon  them  an 
immense  patronage  in  the  appointment  of  receivers  and  referees  and  in 
the  granting  of  commissions  and  allowances.  The  spirit  of  the  times 
contributed  also,  in  a  potent  manner,  to  the  changed  conditions  of  the 
legal  profession.  The  vast  expansion  of  wealth  and  population,  the 
growth  of  great  corporations,  the  widespread  demoralization  attending 
the  civil  war,  the  development  of  the  speculative  spirit,  and  the  steady 
degeneration  of  political  and  official  morality  in  the  city  and  the  legis- 
lature were  not  without  effect  upon  the  legal  profession. 

In  truth,  during  the  years  following  the   war— the  culminating 


UK  iu;n(  II   AM)  i!Ai:  ok  m:\v   vokk 


!!»:{ 


jici'iod  of  Miisnilc  Mild  political  coiiiiiit  ion  in  llic  cil  y  of  Nrw  \'orl<  — 
there  vvus  a  stion;^-  popular  disposilioii  to  hold  llie  bar  in  no  small 
measure  responsible  lor  the  pi'evailin^  scandals  and  c\ils.  It  was 
openly  remarked  "that  its  glory  and  dignity  were  gone,  that  it  had 
ceased  to  be  a  noble  profession  and  had  become  merely  a  trad(>  with 
the  rest."  '  The  gravest  suspicions  were  entertained  against  th(»  integrity 
of  the  judiciary,  and  it  was  widely  believed  that  the  administration  of 
justice  was  disgraced  by  nu)nstr()us  impropi'ieties,  yet  for  a  long  tim*; 
there  were  no  signs  of  any  movement  on  the  i)art  of  the  bar  in  beludf 
of  reforms.'  In  18(59  the  New  York  7''iiiies,  which  had  already  begun 
its  crusade  against  the  "  ring,"  vigorously  criticised  tlie  bar  for  its 
apparent  indifference,  and  urged  it  to  take  steps  for  its  own  vindication 
and  for  the  purification  of  the  bench.  "  If  it  be  the  sui)ineness,  the 
guilty  silence  of  the  lawyers,  as  officers  of  the  people's  courts,  which 
have  brought  us  to  our  present  pass,"  said  the  Times,  "it  is  their 
reawakened  public  spirit  and  activity  which  must  help  us  back  to  a 

better  state  things We  must  again  proclaim  that  the  bar  must 

lead  the  way." ' 

The  necessity  set  forth  in  these  Times  articles  had,  however,  been 
anticipated  by  a  number  of  the  leading  members  of  the  profession,  who 
had  conferred  together  at  intervals  during  the  year,  and  taken  the 
preliminary  steps  toward  organizing  a  bar  association.  The  following 
pledge  had  been  circulated  for  signatures  : 

The  undersigned.  Members  of  the  Bar  of  the  City  of  New  York,  believing  that 
the  oro-aiiized  action  and  influence  of  the  Legal  Profession,  properly  exerted,  would 
lead  to  the  creation  of  more  intimate  relations  between  its  members  than  now  exist, 
and  would,  at  the  same  time,  sustain  the  profession  in  its  proper  position  in  the 
community,  and  thereby  enable  it,  in  many  ways,  to  promote  the  interests  of  the 
public,  do  hereby  nuitually  agree  to  unite  in  forming  an  Association  for  such 
purposes.^ 


'  See  the  address  to  the  members  of  the  har  of  the  city 
of  New  York,  Bar  Association  report,  1870. 

"The  reader  will,  of  course,  understand  that  the  severe 
public  criticisms  of  the  bench  and  bar  at  that  period  were 
provoked  by  exceptional  manifestations  and  events,  for 
which  only  a  portion  of  the  profession  and  the  juduiary 
were  blameworthy.  This  unworthy  element  was  in  no 
manner  representative  of  the  distinguishing  spirit  and 
character  of  the  bench  and  bar  of  New  York.  The 
organization  of  the  Association  of  the  Bar,  in  which  go 
many  reputable  lawyers  promptly  joined,  was  in  itself  a 
complete  vindication  of  the  i)rofeesion  as  a  whole  ;  and 
as  for  the  judiciary,  the  majority  of  its  members  were 
entirely  above  suspicion,  even  in  those  times. 

3  New  York  Times,  December  16,  1S69. 

*  The  following  is  a  complete  list  of  the  original 
signers: 


Wm.  M.  Evarts. 
*IIenry  Nicoll. 

William  Allen  Butler. 
♦John  K.  Porter. 
*A.  J.  Vanderpoel. 
*C.  Van  Santvoord. 
*Thos.  C.  T.  Buckley. 

D.  B.  Eaton. 


*A.  Underhill. 
*D.  D.  Lord. 
*F.  N.  Bangs. 
♦Henry  II.  Anderson. 
*Edwards  Pierrepont. 
*E.  n.  Owen. 

II.  II.  Alexander. 

Ashbel  Green. 


Wm.  M.  Prichard. 

Wm.  G.  Choate. 

Richard  S.  Emmet. 
*ClarksonN.  Potter. 
*Thos.  H.  Rodman. 
*B.  F.  Dunning. 
*John  J .  Townsend. 

Sidney  Webster. 

C.  A.  Seward. 
♦Charles  M.  Da  Costa. 
♦Aug.  F.  Smith. 

LiitluT  \i.  Marsh. 

Joseph  II.  Choate. 

rhs.  P.  Soiitlimayd. 
*Walilo  llutohmj^. 
*LiKk'n  Hird^iye. 
*ChailfS  P.  Crosby. 
♦Benjamin  K.  Phelps. 

Abm.  R.  Lawrence,  Jr. 

Charles  Coudert,  Jr. 
*L.  L.  Coudert. 

John  Erving. 
♦John  H.  Piatt. 
*S.  J.  Tilden. 

H.  M.  Ruggles. 


Everett  P.  Wheeler. 
♦Charles  A.  Rapallo. 
♦Charles  P.  Kirkland. 

W.  W.  Macfarland. 

Charles  A.  Davison. 

F.  R.  Coudert. 
♦Charles  Jones. 
♦C.  J.  De  Witt. 

J.  Frederick  Kernochan. 
*J.  W.  Edmonds. 

William  Ilildreth  Field. 
♦Charles  H.  Glover. 

Buchanan  Winthrop. 
♦Frank  E.  Kernochan. 

Elial  F.  Hall. 
♦John  M.  Knox. 

Herbert  B.  Turner. 
♦Charles  P.  Kirkland,  Jr. 
♦John  McKeon. 

Charles  E.  Butler. 

S.  P.  Nash. 
♦Samuel  E.  Lyon. 
♦Alexander  Hamilton,  Jr. 
♦David  Dudley  Field. 
*E.W. 


194 


HISTOET  OF  THE  BENCH  AND  BAR  OF  NEW  YORK 


At  the  close  of  December,  1869,  231  signatures  having  been 
obtained,  Messrs.  James  C.  Carter,  Albert  Mathews,  and  Edmund 
Randolph  Robinson  were  appointed  a  committee  to  call  a  meeting  for 
the  purpose  of  organization. 

This  truly  historic  meeting  was  held  on  the  evening  of  the  1st  of 
Feburary,  1870.  Edgar  S.  Van  Winkle  presided.  Nearly  every  one  of 
the  subscribers  was  in  attendance.  Although  there  was  nothing  in  the 
jDledge  to  indicate  that  the  signers  had  in  contemplation  any  partic- 
ularly grave  considerations  of  public  or  professional  duty  or  interest, 
all  the  speakers  manifested  the  utmost  seriousness  in  their  remarks.* 
The  addresses  recognized  the  solemn  obligation  resting  upon  the  bar  to 
elevate  the  professional  standards,  and  to  correct  abuses  and  extirpate 
infamies  in  the  administration  of  justice.  "  It  is  not  to  be  concealed," 
said  Judge  James  Emott,  "  that  there  is  a  deep  undertone  of  feeling 
among  the  lawyers  who  have  signed  this  call,  and  who  make  up  this 


I 


*James  Emott. 

Benj.  D.  Silliman. 
*John  Slosson. 

Charles  A.  Peabody. 
*E.  Louis  Lowe. 
*George  N.  Titus. 
♦John  P.  Crosby. 
*Albon  P.  Man. 

John  E.  Parsons. 
*E.  C.  Benedict. 
*J.  S.  Bosvvorth. 
*Edgar  S.  Van  Winkle. 
*G.  M.  Speir. 
♦Henry  A.  Cram. 
*F.  F.  Marbury. 
*Wni.  E.  Curl  is. 
♦Murray  Hoffman. 
♦Hamilton  W.  Robinson. 
♦J.  E.  Burrill. 

J.  W.  Gerard,  Jr. 
♦Alvin  C.  Bradley. 
♦George  T.  Strong. 
♦William  Betts. 

J.  AV.  Ostrander. 
♦W.  A.  Ogden  Hegeman. 

William  Barrett. 
♦David  Thurston. 

William  Henry  Arnoux. 

Charles  C.  Jones,  Jr. 

Franklin  A.  Wilcox. 

Theodore  M.  Davis. 

Charles  D.  IngersoU. 
♦Edm'd  Randolph  Robin- 

♦Henry  R.  Winthrop. 

Henry  Hilton. 
♦John  S.  Jenness. 
♦M.  Van  Buren  Wilcoxson. 

E.  L.  Fancher. 
♦Charles  F.  Sanford. 

John  Whipple. 
♦F.  S.  Stallknecht. 
♦Grosvenor  P.  Lowrey. 

Andrew  Stewart. 


♦Edward  Holland  Nicoll. 

Frederick  Smyth. 
♦Lyman  W.  Bates. 
♦James  S.  Huggini. 

John  Berry. 
♦F.  J.  Fithian. 

Edward  Patterson. 

E.  Ellery  Anderson. 
♦Jos.  B.  Lawrence. 

Charles  E.  Strong. 

A.  P.  Whitehead. 
♦T.  R.  Strong. 

Wm.  J.  Hoppin. 
♦Lewis  L.  Delafleld. 
♦Charles  F.  Blake. 
♦Livingston  K.  Miller. 

Wm.  S.  Opdyke. 

John  E.  Ward. 

Charles  B.  Stoughton. 

Albert  Mathews. 

Flamen  B.  Candler. 
♦Philo  T.  Rugeles. 
*B.  lioclker. 
♦William  Tracy. 

Ch.  Francis  Stone. 

George  W.  Soren. 

George  M.  Miller. 

Wheeler  H.  Peckham. 
♦Theodore  W.  Dwight. 
♦Oscar  Smedberg. 
♦Henry  J.  Scuddcr. 
♦Townsend  Scudder. 

James  P.  Lowrey. 

Henry  D.  Sedgwick. 
♦Richard  H.  Bowne. 
♦Smith  Clift. 

Charles  D.  Burrill. 

George  C.  Barrett. 

Henry  R.  Beekman. 
♦Charles  B.  Moore. 

Noah  Davis. 

Julien  T.  Davies. 

Gerard  Beekman. 

Eugene  H.  Pomcroy. 


♦Hamilton  Morton. 
♦Thomas  C.  IngersoU. 

Richard  H.  Clarke. 
♦Frederick  Kapp. 

Edmund  Wetmore. 

C.  A.  Hand. 
♦F.  H.  Churchill. 
•Henry  E.  Davies. 
♦R.  M.  Harrison. 

Robert  Sewell. 

E.  G.  Drake,  Jr. 

Henry  B.  Hammond. 
♦W.  Q.  Morton. 
♦Henry  Whittaker. 
♦Thomas  M.  Wheeler. 

Charles"  E.  Whitehead. 
♦John  N.  Whiting. 
♦G.  M.  Ogden. 
♦Robert  Benner. 

Elbridge  T.  Gerry. 
♦Charles  Tracy. 
♦Charles  Edward  Tracy. 

J.  Evarts  Tracy. 
♦George  DeForest  Lord. 
♦John  C.  Dimniick. 

J.  S.  Winter. 
♦Joshua  M.  Van  Cott. 
♦George  W.  Parsons. 
♦Hiram  Barney. 
♦John  Sherwood. 
♦Walter  L.  Livingston. 

Albert  Stickney. 
♦Henry  A.  Taller. 

Alfred  L.  Edwards. 

Aug.  R.  Macdonough. 

W.  W.  Goodrich. 
♦8.  Merrihew. 

D.  C.  Van  Cott. 
Beverly  Robinson. 


William  Jay. 

John  A.  Weeks. 
♦Hooper  C.  Van  Vorst. 
♦George  H.  Forster. 

James  F.  Dwight. 

James  C.  Carter. 

Jos.  Larocque. 
*\V.  Stanley. 
•Francis  C.  Barlow. 
♦Charles  H.  Hunt. 

John  S.  Davenport. 
♦John  J.  Latting. 

John  L.  Cadwalader. 
♦Edward  H.  Anderson. 
♦Charles  Nettleton. 
♦John  A.  Foster. 

Smith  E.  Lane. 

Thomas  E.  Stillman. 

Thomas  H.  Hubbard. 
♦Morris  S.  Miller. 
♦John  G.  Vose. 

Dwight  H.  Olmstead. 
♦James  I.  Roosevelt. 

Frederick  E.  Mather. 

William  Watson. 

John  H.  Risley. 

C.  B.  Wheeler. 
♦Edgar  Ketchum. 

A.  P.  Ketchum. 

¥..  Ketchum,  Jr. 
♦Fohn  Fitch. 
♦Samuel  G.  Glassey. 
♦James  R.  Jessup. 
♦Joseph  B.  Vamura. 
♦P.  W.  Turney. 
♦Osborne  E.  Bright. 

Benj.  T.  Kissam. 

Henry  P.  Townsend. 


'  The  speakers  were  :  Henry  Nicoll,  Edwards  Pierre- 
pont,  James  Emott,  Samuel  J.  Tilden,  and  William  M. 
Evarts. 


msiOKV    (»!•■    IIIK    I!I;N(II    AM)    ItAU   OK    NKW    VoKK  TJi") 


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TWO   GKEAT  0\J  )E:5T<0/^>.S?.         Wy^_ 


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VVHO  STOLE  THE  pE0ri.E'S  M^KlTl?  1  00  Tf LL  .ny.times.. 


TWEED  CAKTOONS  BY   THOMAS  NASI', 


'TWA5  >»»M. 

lEEKLY,"   ISTl. 


196  IIISTOEY    OF   THE   BENCH    AND    BAR   OF   NEW  YOEK 

significant  meeting,  upon  certain  subjects.  There  is  an  undertone  in 
what  has  been  said  which  it  would  require  but  little  to  bring  into  dis- 
tinct utterance.  We,  as  lawyers,  feel  deeply  the  complaints  which  are 
rife  of  abuses  in  the  practice  of  the  law  and  in  the  administration  of 
the  law."  And  the  Honorable  Samuel  J.  Tilden  went  even  further, 
using  these  trenchant  words  : 

As  a  class,  as  a  portion  of  the  community,  I  do  not  desire  to  see  the  bar  com- 
bined, except  for  two  objects.  The  one  is  to  elevate  itself ;  to  elevate  its  own  standards ; 
tlie  other  is  for  the  common  and  public  good.  For  itself  nothing ;  for  that  noble 
and  generous  and  elevated  profession  of  which  it  is  the  representative,  everything. 

It  cannot  be  doubted — we  can  none  of  us  shut  our  eyes  to  the  fact — that  there 
has  been,  in  the  last  quarter  of  a  century,  a  serious  decline  in  the  character,  in  the 
training,  in  the  education,  and  in  the  morality  of  our  bar,  and  the  first  work  for 
this  association  to  do  is  to  elevate  the  profession  to  a  higher  and  a  better  standard. 
If  the  bar  is  to  become  merely  a  method  of  making  money,  making  it  in  the  most 
convenient  way  possible,  but  making  it  at  all  hazards,  then  the  bar  is  degraded. 
If  the  bar  is  to  be  merely  an  institution  that  seeks  to  win  causes,  and  to  win  them  by 
back-door  access  to  the  judiciary,  then  the  bar  is  not  only  degraded  but  it  is 
corrupt 

The  bar,  if  it  is  to  continue  to  exist,  if  it  would  restore  itself  to  the  dignity  and 
honor  which  it  once  possessed,  must  be  bold  in  defense,  and,  if  need  be,  bold  in 
aggression.  If  it  will  do  its  duty  to  itself,  if  it  will  do  its  duty  to  the  profession 
which  it  follows  and  to  which  it  is  devoted,  the  bar  can  do  everything  else.  It  can 
have  reformed  constitutions,  it  can  have  a  reformed  judiciary,  it  can  have  the 
administration  of  justice  made  pure  and  honorable,  and  can  restore  both  the  judi- 
ciary and  the  bar  until  it  shall  be  once  more,  as  it  formerly  was,  an  honorable  and 
an  elevated  calling. 

It  should  not  be  supposed  that  the  association  had  in  view  at  the 
start  any  specific  plans  for  the  j^ractical  exercise  of  that  boldness  in 
aggression  which  Mr.  Tilden  counselled.  The  time  had  not  yet  arrived 
for  the  organized  movement  against  the  Tweed  Ring.  The  formation 
of  the  Bar  Association  antedated  by  many  months  the  damning  dis- 
closures which  marked  the  beginning  of  the  formal  campaign  ;  indeed, 
it  was  not  until  the  middle  of  1871 — a  year  and  a  half  after  the  first 
bar  meeting— that  the  popular  uprising  came.  Consequently  the 
original  objects  of  the  association  did  not  at  all  include  schemes  of 
immediate  reform  operations ;  such  schemes,  announced  by  a  dig- 
nified association  of  lawyers,  would  have  seemed  j^recipitate  in  the  as 
yet  unawakened  state  of  public  oi)inion.'  But  it  is  none  the  less  true 
that  in  the  establishment  of  the  Association  of  the  Bar  in  February, 
1870,  the  growing  sentiment  of  the  community  first  found  distinct 
expression  ;  and  the  Bar  Association  was  truly  one  of  the  pioneers  in 
the  grand  enterprise  of  the  city's  delivery.  Moreover,  the  more  clear- 
seeing  of  the  founders  of  the  association  had  a  thorough  understanding 

>  Mr.  Henry  Nicoll,  the  principal  speaker  at  the  bar  formed  in  a  spirit  of  hostility— that  its  object  is  attack, 

meeting,  deemed  il  unwise  to  provoke  popular  criticism  I  hasten,  for  myself  and  every  other  gentleman  asso- 

of  the   association   by  any  semblance  of   aggressive  elated  with  me,  to  deprecate  any  such  idea,  and  to  dis- 

purpose.    "1  fancy,"  said  he,    "that  there  are  not  a  avow  any  such  intent." 
few  who  will  perhaps  think  that  it  (the  associationi  is 


Clycui^^^tA^ji^  cy ,  r/i/i^^^ 


IIISIOKV    OK 


liK.NCll     AM)     l!Ai:    dl'     N  I !  W     ^ 


r.»7 


of  \\w  liTMvity  (»r  the  sitiiMtioii  with  wliicli  tlinl  \nu\\  woiiM,  I(.-i,.;il|y, 
have  sooner  or  later  to  (Iciil.  It  was  not  incirly  the  elevation  of  pi(»l'<'s- 
sional  stan(hinls,  it  was  the  vei\  salvalioii  of  tiie  hencli,  that  was  to 
reqnire  most  conscientious  and  (K'terniined  endeavor.  For  tlif  coi-- 
rnpt  character  of  a  portion  of  the  judiciary  was  already  very  well 


-.-^ry^- 


"\\nAT   AKE   TOU  LAUGHING   AT?     TO  THE   MCTOR  BELONG  THE   SPOILS." 

(Tweed  cartoon,  Hai-ixr'ii  Wiffcly,  after  the  election  of  1871.) 

known  to  the  bar,  and  recent  notorious  doings  liad  made  the  humil- 
iating truth  odiously  con.spicuous. 

At  a  second  meeting,  February  15,  1870,  the  association  was 
organized  permanently  under  the  name  of  the  "  Association  of  the 
Bar  of   the  City   of   New  York,''   a  constitution   and  by-laws   were 


198  HISTORY    OF   THE   BENCH   AND   BAR   OF   NEW   YORK 

adopted,  and  officers  were  chosen,  as  follows  :  President,  William  M. 
Evarts  ;  vice-presidents,  Samuel  J.  Tilden,  James  W.  Gerard,  Joseph 
S.  Bosworth,  John  Slosson,  and  Edgar  S.  Van  Winkle  ;  treasurer, 
Albon  P.  Man  ;  corresponding  secretary,  John  Bigelow.  The  objects 
of  the  association  were  thus  defined  in  the  constitution  : 

To  maintain  the  honor  and  dignity  of  the  profession  of  the  law,  to  increase  its 
usefulness  in  promoting  the  due  administration  of  justice,  and  to  cultivate  social 
intercourse  among  its  members. 

The  by-law  governing  admissions  to  membership  was  so  drawn  as 
to  afford  reasonable  safeguards  against  the  entrance  of  unworthy  indi- 
viduals. A  committee  on  admissions  was  appointed,  consisting  of 
twenty  members.  Candidates  against  whom  five  negative  votes  were 
cast  in  the  committee  were  not  to  be  recommended  to  the  association  ; 
and  candidates  recommended  for  admission  Avere  to  be  voted  on  by 
ballot  in  the  association,  one  negative  vote  in  every  five  being  suffi- 
cient for  exclusion. 

The  first  public  action  of  the  association,  taken  two  or  three  days 
after  its  formal  organization,  was  not  without  significance.  On  the 
13th  of  February  the  city  was  stirred  by  the  news  of  the  attempted 
assassination,  the  evening  before,  of  Mr.  Dorman  B.  Eaton.  Mr.  Eaton 
had  made  himself  obnoxious  to  certain  interests  by  the  part  he  took 
in  the  Gould-Erie  litigation  and  other  matters  more  or  less  involving 
the  same  interests  ;  and  it  was  a  natural  inference  that  the  attempt  on 
his  life  was  inspired  by  resentment.  The  Bar  Association  promptly 
met,  adopted  resolutions  denouncing  the  outrage,  and  offered  a  reward 
of  $5,000  for  the  conviction  of  the  offender.  Although  nothing  came 
of  this  action,  it  was  a  timely  manifestation  of  the  earnest  spirit  which 
actuated  the  bar  in  its  newly  organized  capacity. 

The  association  was  incorporated  by  an  act  of  the  legislature 
passed  April  28,  1871.  In  the  summer  of  that  year  the  Times  began 
its  publication  of  the  city  accounts,  demonstrating  by  official  figures 
the  complete  truth  of  all  the  charges  that  had  been  made  against 
Tweed  and  his  associates ;  and  in  the  November  following  the  ring 
was  overwhelmed  at  the  polls. 

The  Bar  Association  now  entered  actively  upon  the  work  of  investi- 
gating the  city  judiciary  and  ousting  the  corrupt  judges  from  oflSce. 
On  November  14,  seven  days  after  the  election,  a  special  meeting  was 
held,  at  which  a  committee'  was  appointed  with  instructions  "  to  inquire 
into  the  truth  of  the  charges  that  have  gained  credit  in  this  com- 
munity, reflecting  upon  the  administration  of  justice  in  this  city,  and 
to  ascertain  whether  the  same  have  a  just  foundation  in  trustworthy 
evidence,  .  .  .  and  to  report  whether  it  is  expedient  for  this  association 
to  take  any  and  what  measures  in  the  premises."  The  committee  of 
inquiry  unanimously  reported  to  the  association,  January  4,  1872,  that 

1  The  members  of  this  committee  were  :  Wheeler  11.     Spcir,  William    M.    Pricliard,   James   C.  Carter,  and 
Peckham,   Noah    Davie,    John    SIobbod,    Gilbert   M.     Joshua  M.  Van  Cott. 


IIISIOIIY    <H'     I'lll';    ItK.NCII     .\M>    ItAK    ol'    M-.W    VOItK  I'.Ki 

it  ]i:i(l  ns('(Mt;iintMl  tlH'cli:ir,<f(\s  to  Ix' well  foiiiKN-d,  and  thai  tlicy  wci-n 
of  such  {'hanictcr  as  to  call  lor  invest i<;at ion  by  the  Ic^^islatiirc  and  the 
removal  from  otiice,  by  the  methods  provided  by  law,  of  the  ;^iiilty 
jud.i^es.  The  olTenses  established  by  the  iiKiuiiy,  coiit iiiiied  the  com- 
mittee, consisted 

In  the  {jross  abuse  of  the  powers  of  such  judfj^es  and  the  courts  held  by  them, 
respectively,  in  the  pfrantinfj:  of  injunctions,  in  the  creating  of  receiversliips  and  tlio 
appointment  of  rt>ceivers  and  transferriufj  to  them  vast  amounts  of  property,  botli 
of  corporations  and  iiuHviduals  ;  in  abusing  the  power  to  appoint  refei-ees  and  in 
niakinp:  excessive  allowances  to  receivei-s,  referees,  and  others  for  purposes  not 
justilied  by  law;  in  abusinj^  their  authority  in  the  manner  of  holding  courts;  in 
niakin<i:  improper  ex  parte  orders  out  of  court,  and  in  deciding  causes  and  motions 
without  a  liearing  in  court  ;  in  abusing  tiie  writ  of  habeas  corpus,  by  using  or 
permitting  its  use  for  unlawful  i)urp()ses,  and  in  improperly  witliholding  relief 
under  tlie  writ  ;  in  attempting  the  intimidation  of  counsel  in  the  discliarge  of  dutj- 
toward  their  clients,  and  in  showing  undue  favoritism  to  other  counsel  and  attor- 
neys for  their  personal  or  professional  advancement  ;  in  gross  and  indecorous 
conduct  while  sitting  in  court,  tending  to  bring  the  office  of  judge  into  popular 
contempt  ;  in  various  acts  indicating  the  influence  of  corruption  upon  their  ofKcial 
conduct  and  decisions;  and  finally  in  so  perverting  judicial  authority-  by  the  use  of 
devices  under  the  forms  of  law  as  to  enable  individuals  and  corporate  officers  to 
usurp  and  exercise  unlawful  powers,  seize  and  convert  property,  accomplisli 
nefarious  designs  and  evade  justice. 

This  report  was  approved  by  the  association  and  a  memorial  to 
the  legislatnre  was  prepared,  in  which  it  was  urged  that  a  rigid  inquiry 
be  instituted,  and  "  such  remedies  be  applied  as  the  results  of  that 
inquiry  may  demand."  A  committee  of  sixteen'  was  selected  to 
present  the  memorial  at  Albany.  Early  in  the  next  month  (February, 
1872),  specific  charges  having  been  drawn  against  George  G.  Barnard 
and  Albert  Cardozo,  justices  of  the  Supreme  Court,  the  judiciary  com- 
mittee of  the  assembly  began  the  taking  of  testimony.  Later,  similar 
charges  against  John  H.  McCunn,  justice  of  the  Superior  Court  of  the 
City  of  New  York,  were  submitted  and  considered.  The  counsel  for 
the  Bar  Association  throughout  the  resulting  proceedings  were  Joshua 
M.  Van  Cott,  John  E.  Parsons,  and  Albert  Stickney. 

The  issue  of  these  memorable  prosecutions  of  the  three  ring 
judges  was  a  complete  victory  for  the  Bar  Association.  On  May  2 
Judge  Cardozo  resigned  to  avoid  impeachment ;  July  2  Judge  McCunn 
was  removed  from  office  by  the  unanimous  vote  of  the  senate ;  and 
August  19  Judge  Barnard  was  adjudged  guilty  and  removed  by  the 
senate  and  Court  of  Appeals  sitting  as  a  High  Court  of  Impeachment, 
the  decision  in  this  case  also  being  unanimous.  Barnard,  in  addition 
to  removal,  was  by  a  vote  of  33  to  2  forever  disqualified  from  again 
holding  public  office.  The  Bar  Association  and  the  public  contributed 
in  the  aggregate  nearly  $30,000  for  the  expenses  of  the  prosecutions. 

'  Noah  Davis,  Joseph  U.  Choate,  E.  R.  Lawrence,  Jr.,  dolph  Robineon,  Joshua  JI.  Van  Cott,  Andrew  Board- 
Charles  H.  Hunt,  Morris  L.  Miller,  John  E.  Parsons,  man,  George  M.  Gilbert,  Charles  Tracy,  Stewart  L. 
John  McKeou,  Stephen  P.  Nash,  Henry  Nicoll,  E.  Ran-     Woodford,  and  William  R.  Martin. 


200 


HISTORY    OF   THE    BENCH   AND   BAR   OF   NEAV   YORK 


Much  the  largest  part  of  this  amount  was  given  by  members  of  the 
association,  but  subscriptions  Avere  received  also  from  banks,  insurance 
and  trust  companies,  and  citizens  who  appreciated  the  importance  of 
the  undertaking  for  reforming  the  judiciary. 

The  work  thus  accomplished  was  in  important  respects  the  vital 
achievement  of  the  whole  reform  movement.  Considered  in  its 
strictly  popular  phases,  the  destruction  of  the  Tweed  Ring,  as  an 
organized  band  of  plunderers,  was  certainly  a  splendid  demonstration 
of  the  irresistible  power  of  aroused  jmblic  sentiment  for  the  immediate 
correction  of  even  the  worst  government ;  yet  no  one  will  assert  that 
it  definitely  brought  to  an  end  the  possibility  of  systematic  misrule 
and  corrupt  rule  in  New  York.    The  renovation  of  the  ordinary  public 


WASHIKGTON  BUILDING. 


I'ROllUCE  EXCHANGE. 


offices  of  New  York  effected  by  the  people's  uprising  in  1871  of  course 
had  an  enduring  value  of  a  certain  kind  ;  for  it  afforded  both  a  stimu- 
lating example  and  a  stern  warning  for  all  the  future.  But  it  is  in  the 
very  nature  of  popular  government  that  grave  abuses  in  official  admin- 
istration will  reappear  from  time  to  time  notwithstanding  occasional 
successful  applications  of  the  most  radical  correctives ;  and  despite 
the  great  reformation  of  1871  it  is  notorious  that  the  standards  of  the 
city  government  of  New  York  have  frequently,  in  the  years  which  have 
elapsed  since  then,  been  very  remote  from  the  ideal.  On  the  other 
hand,  the  purification  of  the  judiciary  by  the  efforts  of  the  Bar  Associa- 
tion proved  to  be  final,  and  at  no  time  has  this  portion  of  the  work  of 
1871-72  had  to  be  done  over  again.  It  has  never  since  been  found 
needful  to  formulate  indictments  like  those  brought  against  Judges 
Barnard,  Cardozo,  and  McCunn  ;   and  on  only  one  occasion  has   the 


IIISIOUV    OK     IIIK    ISKNCII    AND    1!  A  U    <»K    NKW    VoUK  l?(l  I 

association  (Ircincd  it  lilt  in;;-  io  rctiiicsl  Ici^islativc  iiKiiiiiy  iiil;»  llir 
C'oiuliict  of  a  jiidu'!'  of  tlic  city  bench.' 

Tlic  association  has  continued,  however,  to  take  vii^dlant  and  active 
interest  in  all  matters  airectiny  the  ellicieiicy  and  repute  of  the  couits. 

In  tlie  universal  dis<::ust  excited  by  the  i-evelations  of  tlie  judiciaiy 
inipeiu^hnient  proceedings,  a  re-action  st-t  in  againsl  the  entire  system 
of  elective  judges.  A  constitutional  amendment  was  sid)nntted  in 
KS73,  jM-oviding  for  a  return  to  the  ai)i)()intive  method.  This  was 
earnestly  favored  by  the  Bar  Association,  and  an  able  address  to  the 
l)eople,  sig-ned  by  William  M.  Evarts,  was  issued.  The  amendment 
was,  however,  defeated  at  the  polls  ; "  and  as  party  nominations  lor 
judicial  offices  have  since  then  iienerally  ^iven  no  ground  for  com- 
plaint, the  association  has  accejjted  the  established  order  of  things. 
No  attem])t  has  been  made  at  its  instance  to  reopen  the  question. 

It  has  always  been  one  of  the  leading  features  of  the  association's 
public  attitude  to  exert  a  practical  influence  for  the  nomination  and 
election  of  none  but  good  and  thoroughly  qualified  men  for  positions 
on  the  bench.  In  the  anti-ring  campaign  of  1871,  the  Bar  Association, 
at  a  numerously  attended  meeting,  appointed  a  committee  to  confer 
with  the  different  political  organizations  as  to  the  judicial  candidates 
to  be  nominated,  and  the  same  course  was  pursued  in  1872.  It  came 
to  be  understood  by  the  politicians  that  the  Bar  Association  was 
thoroughly  in  earnest  on  this  subject,  and  that  every  unworthy 
judicial  candidate  would  have  to  encounter  its  uncompromising  oppo- 
sition. In  1881  the  association  thus  defined  its  policy  in  reference  to 
judicial  nominations : 

Any  active  participation  in  a  canvass  for  judicial  offices  would  be  distasteful 
to  us,  but  it  has  been  necessary  in  the  past,  and  it  may  be  necessary  in  the  future. 
If  so  we  shall  not  shrink  from  it.  We  felt  justified  in  taking  an  active  part  in  the 
impeachment  and  removal  of  two  judges.  We  cannot  doubt  that  this  association 
will  think  it  within  its  province  to  take  all  steps  necessary  to  insure  the  choice  of 
suitable  successors. 

In  conformity  with  this  definition  of  policy,  the  following  provi- 
sion is  made  by  the  by-laws : 

At  each  annual  meeting  there  sliall  be  appointed  by  the  presiding  officer  a 
committee  of  ten,  to  be  known  as  the  committee  on  judicial  nominations,  whose 
duty  it  shall  be  to  consider  the  fitness  of  candidates  nominated  or  proposed  to  be 

'  Investigation    of    cliarges   or    complaints    against  thereon,  and  tliey  may  also  report  the  evidence  taken  or 

judges  has  up  to  the  present  time  never  been  under-  any  part  thereof." 

taken  by  the  l?ar  Association  except  in  special  public  »  The  amendment  was  submitted  in  the  form  of  two 

emergencies.    But  by  a  by-law  adopted  in  December,  questions  :    1.   "  Shall  the  chief  judge  and  associate 

189f>,  the  standing  committee  on  grievances  is  author-  judges  of  the  Court  of  Appeals  and  the  justices  of  the 

ized,  on  the  submission  to  it  of  a  complaint  in  writing,  Supreme  Court  be  hereafter  elected  or  appointed  ?  "    2. 

to  investigate  any  grievance  touching  the  administration  "  Shall  the  judges  of  the  Superior  Courts  of  New  York 

of  justice.    The  committee  on  grievances  is  to  report  its  City  and  Brooklyn,  of  the  Court  of  Common  Pleas  of 

conclusions  to  the  e.xeculive  committee,  and  "if  the  Buffalo,  and  the  several  county  judges  throughout  the 

said  committee  shall  find  the  complaint,  or  any  material  state  be  hereafter  elected  or  appointed''"     The  vote 

part  of  it,  to  be  of  such  a  nature  as  to  require  action  by  stood  :  for  election  of  higher  judges,  319,979,  against, 

the  association,  they  shall  so  report  to  the  association,  llS.aST  ;  for  election  of  lower  judges,  319,660,  against, 

with  their  recommendations  lu  to  the  action  to  be  ta,keB  110,733. 


202  HISTORY    OF  THE   BENCH   AND   BAR   OF  NEW   YORK 

nominated  by  political  parties  or  otherwise,  for  election  or  appointment  to  judicial 
office,  and  to  confer  on  that  subject  with  otlier  organizations  or  with  nominating 
conventions,  and  with  power  to  recommend  to  the  association,  at  a  special  meeting 
or  otherwise,  such  action  in  respect  to  candidates  as  they  may  deem  necessary  or 
proper. 

It  is  gratifying  to  note  in  the  published  reports  of  the  Bar  Asso- 
ciation that  the  space  set  apart  for  "  Annual  Report  of  the  Committee 
on  Judicial  Nominations"  has  for  very  many  years  contained  only 
the  single  word  "  None." 

But  while  the  association's  recent  records  show  entire  absence  of 
cause  for  discontent  with  New  York  City  judicial  nominations,  the 
action  taken  in  a  late  state  judiciary  contest  forms  a  conspicuous 
chapter  in  its  history.  The  circumstances  of  the  Maynard  affair  are 
still  fresh  in  the  recollection  of  the  bar  and  the  public  ;  and  it  is  not 
needful  or  desirable  to  allude  to  them  in  detail  here.  It  is,  of  course, 
unnecessary  to  remark  that  the  conduct  of  Mr.  Maynard,  as  attorney- 
general  of  the  state,  in  the  matter  of  the  Dutchess  county  returns — a 
matter  involving  extensive  party  interests — was,  until  the  facts  became 
fully  known,  a  subject  of  somewhat  divided  opinion  in  an  association 
of  lawyers  having  varied  party  affiliations.  When,  however,  Mr.  May- 
nard was  elevated  to  a  vacant  judgeship  in  the  Court  of  Appeals  by  the 
governor's  appointment,  a  strong  opposition,  on  grounds  of  principle, 
was  developed,  and  a  course  corresponding  to  the  sentiment  thus 
declared  was  adopted  accordingly.  A  committee  of  nine  '■  was  ap- 
pointed March  8, 1892,  to  investigate  the  questions  at  issue ;  and  on 
March  22  the  association,  adopting  the  committee's  recommendations, 
requested  the  senate  and  assembly  "to  consider  whether  the  conduct 
of  Judge  Isaac  H.  Maynard  does  not  demand  an  exercise  of  the  power 
to  remove  judges  vested  by  the  Court  of  Appeals  in  the  legislature." 
The  association  later,  in  the  fall  campaign  of  1893,  followed  up  this 
action  by  taking  a  prominent  part  in  opposing  Judge  Maynard's  elec- 
tion to  the  position  in  the  Court  of  Appeals  for  which  he  had  been 
nominated  by  his  party. 

One  of  the  prime  objects  of  the  association's  existence,  as  stated 
in  the  constitution,  is  "  to  maintain  the  honor  and  dignity  of  the  pro- 
fession of  the  law."  In  promotion  of  this  aim,  it  has,  from  the  begin- 
ning, been  very  attentive  to  all  matters  concerning  the  standards  of 
the  profession.  Special  consideration  has  been  given  by  it  at  various 
times  to  the  important  subject  of  the  regulations  for  admissions  to  the 
bar  ;  and  although  much  of  the  credit  for  recent  improvements  in  this 
respect  is  due  to  the  State  Bar  Association,  the  original  steps  were 
taken  by  the  New  York  City  association.  For  exami)le,  the  essential 
feature  of  the  present  regulations,  vesting  the  whole  responsibility  for 
admissions  in  a  State  Board  of  Law  Examiners  appointed  by  the  Court 

•Frederic  R.  Coudert,  James    C.    Carter,  John  E.      son,  John    L.    Cadwalader,   William   B.   Uornblower, 
Parsons,  Clifford  A.  Hand,  Edmund  Randolph  Kobin-     Elihu  Root,  and  Albert  Stickncy. 


HIS'IOIIY    OK   Till-:    HKNCII    AM)    UAU    OK    MOW    Vol.'K  "JiKi 


'j^ClFeRY. 

FOR    THC 

jyeLiC 

NITCD     STATES) 

^Hu  PTli©N 


TO   WHOM  IT  MAT  CONCERN. 

newtokk:  "NOW  you  see  what  i  did  about  it.    go  and  do  likewise. 
(Tweed  cartoon,  Harper's  WeefUy,  1871.) 


204  HISTOEY   OF  THE  BENCH   AND   BAR  OF   NEW   YORK 

of  Appeals,  was  proposed  for  adoption  as  early  as  1876  by  a  committee 
of  tills  association,  of  wliich  Lewis  L.  Delafiefd  was  chairman. 

With  regard  to  lawyers  guilty  of  unprofessional  behavior,  the  by- 
laws are  very  precise.  It  is  made  the  duty  of  one  of  the  standing 
committees — the  committee  on  grievances— to  thoroughly  investigate 
all  such  cases  which  shall  be  brought  properly  to  its  notice,  and  the 
association  undertakes  to  prosecute  in  the  courts  any  individual  whom 
the  committee  duly  accuses.  For  a  number  of  years  after  its  organiza- 
tion the  association  confined  its  proceedings  as  to  unprofessional 
conduct  to  its  own  members  ;  but  now  its  services  may  be  commanded 
against  any  attorney  who  merits  punishment  for  his  professional 
misdeeds.  In  like'  manner  it  stands  ready  to  afford  opportunity  for 
vindication  to  any  member  of  the  bar  who  has  been  accused  wrong- 
fully, or  unjustly  injured  in  his  reputation.  There  is  j^robably  no 
more  characteristic  episode  in  its  history  than  the  personal  inquiry 
which  it  caused  to  be  instituted  at  the  request  of  Mr.  Charles  O'Conor. 
In  1876,  one  of  the  leading  newspapers  of  New  York  published  an 
article  reflecting  upon  Mr.  O'Conor's  professional  honor.  The  charge, 
in  brief,  was  that  in  the  celebrated  Forrest  divorce  case  he  assumed  to 
serve  his  client,  Mrs.  Forrest,  gratuitously ;  that  this  was  the  public 
understanding,  in  consequence  of  which  he  was  greeted  with  much 
popular  acclaim,  and  at  the  triumphant  conclusion  of  the  case  was  the 
recipient  of  costly  presents  of  silver  plate  from  the  ladies  of  New  York 
and  from  his  professional  brethren ;  but  that,  a  number  of  years  later, 
upon  collecting  for  Mrs.  Forrest  a  judgment  of  $64,000,  he  paid  him- 
self and  his  associate  counsel  exorbitant  fees.  Mr.  O'Conor  promptly 
appeared  before  the  Association  of  the  Bar  and  demanded  an  investiga- 
tion. An  inquiry  tribunal  was  chosen,  composed  of  several  of  the 
most  prominent  citizens  of  New  Y^ork.  The  tribunal,  after  due  consid- 
eration of  the  charge,  pronounced  it  unfounded  and  calumnious." 

Turning  from  those  aspects  of  the  Bar  Association  and  its  career 
which  have  to  do  specially  with  its  relations  to  the  immediate  interests 
of  the  bench  and  the  bar,  we  find  that  it  has  been  constantly  active  and 
influential  in  general  public  concerns.  The  limits  of  this  article  do  not 
admit  of  a  detailed  account  of  its  miscellaneous  activities.  It  will  be 
sufiicient  to  glance  briefly  at  two  or  three  of  the  more  conspicuous  and 
interesting  of  these  undertakings. 

Of  the  standing  committees  of  the  association  the  most  important 
is  that  on  the  amendment  of  the  law,  which  is  charged  with  the  duty 

»  The  report  of  the  tribunal  closed  with  the  following  might  otherwise  have  taken  the  more  dangerous  form 

impreegive  words;  "f  "  posthumous  aspersion.    When  his  late  extreme  and 

"In  conclusion, the  undersigned  arc  of  opinion  that  ai)parently  hopeless  illness  is  considered,  his  recovery, 

there  is  no  foundation  for  any  of  the  charges  against  even  to  those  who  are  indisposed  to  regard  the  events  of 

Mr.  O'Conor.     Unjust  accusations  are  always   to  be  this  life  as  influenced  by  any  other  than  natural  agencies, 

deplored  ;  for  even  though  they  are  shown  to  be  so,  they  will  seem  almost  like  a  recall  from  the  confines  of  aii- 

are  a  source  of  trouble  and  annoyance  to  those  against  other  world  to  maintain  the  most  precious  of  his  posses- 

wliom  they  are  brought.    In  his  case  it  is  well  that  they  sions— a  spotless  name." 
have  been  made  and  refuted  in  his  lifetime,  for  they 


IIISIOIIY    (»F    '11 


l?KN('II    AM)    l!.\lt    OK    NKW    VoUK 


iiOa 


of  "  \v;it('liin<j:  all  ])roi)OS(>(l  (•liaii'rcs  in  tlio  law  and  of  jjioposin^'^  such 
aiiuMuhneiits  as  in  its  opinion  should  be  rt'coinincndrd  l)y  this  associa- 
tion." The  committee  on  the  amendment,  of  the  law  is  really,  so  far 
as  it  is  proper  or  i)ossible  for  a  strictly  unoflicial  body  to  be  such,  a 
recoij^ni/.ed  factor  in  the  legislation  of  the  state.  It  receives  a  copy  of 
every  bill  introduced  in  the  senate  and  assembly,  and  follows  the  entire 
course  of  legislation.  Moreover,  it  at  times  takes  tJie  initiative  in 
framing  and  uruiuii;  measures  deemed  desirable  ;  and  to  this  end  it  is 
provichul  in  the  by-laws  that  memb(>rs  may  at  any  time  sultmit  to  the 
committee  "  sugf;estions  of  ex- 
isting defects  in  the  law,  and 
of  any  amendment  which  they 
may  think  desirable." 

The  prolonged  and  deter- 
mined campaign  waged  by 
the  Association  of  the  Bar,  at 
the  instance  of  its  committee 
on  the  amendment  of  the  law, 
against  the  "proposed  civil 
code,"  is  a  striking  illnstra- 
tion  of  its  activity  and  inflTi- 
ence  in  legislative  matters. 

The  constitution  of  1846 
contained  a  mandatory  pro- 
vision that  three  commission- 
ers be  appointed  "to  reduce 
into  a  written  and  systematic 
code"  so  much  as  to  them 
should  seem  "  practicable  and 
expedient"  of  "the  whole 
body  of  the  law  of  this  state," 
and  "make  reports  of  their 
proceedings  to  the  legislature 
when  called  on  to  do  so "  ;  in  pursuance  of  which  provision  three 
separate  commissions  were  constituted  (1849,  1850,  and  18o7),  and  in 
1865  a  proposed  civil  code  was  submitted  to  the  legislature  in  the 
form  of  an  act  composed  of  2,034  sections.  It  was  designed  that  the 
civil  code  should  be  one  of  "  Five  Codes,"  the  others  being  the  political 
code,  the  penal  code,  the  code  of  civil  procedure,  and  the  code  of  crim- 
inal procedure.  It  was  not,  however,  until  1879  that  the  civil  code  was 
acted  on  by  the  legislature  ;  it  was  then  adopted  by  both  houses,  but 
was  vetoed  by  Governor  Robinson. 

The  Association  of  the  Bar,  in  view  of  the  great  and  far-reaching 
importance  of  the  subject,  appointed  a  special  committee  '  to  make  a 
comprehensive  examination  of  the  code  and  report  as  to  the  expediency 
of  its  enactment.    March  15,  1881,  the  committee  reported  that,  in  the 


NEW  YORK  CUSTOM   HOUSE. 


206  HISTORY   OF  THE   BENCH   AND   BAR   OF   NEW   YORK 

opinion  of  each  of  its  members,  "the  passage  of  this  statute  would 
be  an  unmixed  evil,  fraught  with  incalculable  mischief  to  every  j)erson 
directly  interested  in  the  administration  of  the  law  throughout  the 
state  ; "  that  the  code  was  not,  as  its  authors  claimed,  "  a  code  of  the 
common  law  "  of  the  state— not  "  an  affirmance  of  what  the  common 
law  now  is,"  containing  no  "  provisions  in  derogation  of  that  law,"  but 
reached  far  beyond  any  such  modest  scheme  and  "  mingled  common 
law,  statutory  law,  and  new  law  in  one  common  mass,  with  no  designa- 
tion to  guide  those  who  seek  to  ascertain  the  proportions  of  the 
several  ingredients." 

This  uncompromising  attitude  of  the  association  was  persevered 
in  throughout  the  notable  struggle  that  followed — although  some  of 
its  members  dissented  from  the  position  taken  and  earnestly  favored 
the  code.  At  first  the  legislature  seemed  to  be  almost  unanimous  in 
approval  of  the  scheme.  In  1881  the  act  passed  the  assembly  by  a 
vote  of  83  to  3,  but  the  senate,  influenced  by  the  strong  opposition  of 
the  Bar  Association,  took  no  action.  In  1882,  however,  the  senate  also 
approved  the  measure,  the  vote  standing  20  to  11.  The  Bar  Associa- 
tion's committee  thereupon  went  before  the  governor,  with  the  result 
that  a  veto  was  again  interposed.  In  each  succeeding  year,  for  five 
years,  the  fight  was  continued,  the  supporters  of  the  code  in  the  legis- 
lature gradually  becoming  weaker,  until  in  1888  they  practically  aban- 
doned the  contest. 

The  Bar  Association,  while  opposed  to  the  civil  code,  endorsed  the 
penal  code.  After  the  enactment  of  that  statute  in  1881,  a  committee 
of  the  association,  of  which  Frederic  R.  Coudert  was  chairman,  made 
a  careful  examination  of  it,  and  reported  against  any  attempt  for  its 
repeal.  On  the  other  hand,  the  bill  to  establish  a  code  of  evidence 
was  pronounced  unwise  and  undesirable,  Mr.  James  C.  Carter  being 
chairman  of  the  association's  special  committee  on  that  subject. 

To  the  efforts  of  the  Association  of  the  Bar  the  legal  profession 
and  the  public  are  mainly  indebted  for  the  valuable  reforms  that  have 
lately  been  introduced  in  the  system  of  land  transfers. 

The  association  also  is  entitled  to  the  credit  of  inaugurating  the 
movement  for  very  much  needed  reforms  in  the  city  offices  of  New 
York.  In  1872  a  committee  on  extortions  was  appointed  to  inquire 
into  illegal  exactions  in  the  public  offices  of  the  city— especially  the 
offices  of  the  sheriff,  county  clerk,  register,  surrogate,  and  clerks  of  the 
various  courts.  A  systematic  investigation  was  prosecuted,  which  re- 
sulted in  astounding  revelations.  It  was  shown,  for  instance,  that  the 
sheriff's  office  was  so  administered  as  to  yield  a  revenue  for  its  chief 
of  $100,000  to  $150,000  a  year,  and  that  the  register  realized  fully 
$40,000  annually  from  overcharges  for  recording  instruments,  and 
$20,000  to  $30,000   from   illegal  fees  for  searches.      The  committee, 

I  Clifford  A.  Hand,  Frederic  R.  Coudert,  Elial  F.  Hall,  Charles  C.  Bcaman,  Jr.,  David  McClure,  aud  William  B. 
Homblower. 


HISTORY   OF  THE   BENCH   AND    BAR   OF   NKW    YOltK  207 


208  HISTORY    OF   THE   BENCH   AND    BAR   OF   NEAV   YORK 

in  its  recommendations,  went  to  the  root  of  these  abuses,  advising  that 
all  the  officers  concerned  be  paid  fixed  salaries,  that  the  fees  be 
abolished  or  reduced  so  far  as  practicable,  and  that  all  fees  still  re- 
tained be  paid  into  the  city  treasury.  In  1874  a  committee  of  the 
association  '  appeared  at  Albany  in  advocacy  of  the  suggested  reforms, 
and  Mr.  Lewis  L.  Delafield  made  a  very  able  argument  setting  forth 
their  urgent  necessity.  In  1877  and  1878  the  work  was  resumed  with 
vigor.  The  association  laid  before  the  governor  formal  charges  of 
"  neglect  of  duty  in  office,  malversation  in  office,  malfeasance  in  office 
and  extortion,"  against  the  sheriff,  county  clerk,  and  register."  Gover- 
nor Robinson,  after  due  investigation,  removed  County  Clerk  Gumble- 
ton  from  office,  but  decided  that  the  facts  did  not  justify  the  removal 
of  the  register  and  sheriff.' 

The  changed  order  of  things  in  the  city  offices  of  New  York  is, 
therefore,  the  direct  outcome  of  the  agitation  begun  by  the  Bar 
Association  and  determinedly  prosecuted  by  it  for  years. 

The  association,  as  the  representative  organization  of  the  New 
York  bar,  has  in  every  respect  amply  realized  the  besi  hopes  of  its 
founders.  In  the  foregoing  review  of  its  public  record  only  the  most 
important  of  its  proceedings  have  been  noticed,  and  there  is  no  oc- 
casion, in  an  article  intended  merely  to  sketch  its  distinctive  history 
and  character,  to  enlarge  further  upon  this  abpect.  The  essential 
thing  to  be  observed  is  that  the  association  has  proved  itself  at  all 
times  to  be  a  living  and  vigorous  force,  promptly  and  earnestly  in- 
teresting itself  in  leading  issues  and  questions  as  they  arise.  There 
have  consequently  at  different  periods  been  divisions  in  its  councils- 
some  of  them  rather  fundamental  and  delicate.  But  experience  in 
this  regard  has  not  at  all  operated  toward  a  modification  of  the 
original  active  spirit,  and  the  association  is  likely  to  continue  in  the  ex- 
ercise of  all  the  energetic  qualities  that  have  hitherto  distinguished  it. 

The  membership  of  the  association  at  the  time  of  its  formation 
was  not  much  in  excess  of  two  hundred.  The  roll  of  members  now 
(February,  1897)  shows  a  total  of  1,470,  including  non-resident  and 
honorary  members.  It  owns  and  occupies  one  of  the  finest  and 
costliest  buildings  in  New  York  devoted  to  the  uses  of  a  private 
organization.'  A  magnificent  library,  ranking  as  one  of  the  very  best 
law  libraries  in  the  world,  has  been  collected,  now  numbering  51,416 
volumes,  of  which  36,090  were  purchased  out  of  the  funds  of  the 
association  and  15,326  were  donated  by  members  and  others.     The 

1  Wheeler  H.  Peckham,  John  McKeon,  Clifford  A.     party,  resulting  in  John  Kelly's  nomination  for  gover- 
Hand,  and  Charles  Tracy.  nor  a"d  Robmsoii's  defeat  in  his  candidacy  for  re- 

2  The  committee  representing  the  association  in  this     election. 

matter  was  composed  of  Artemas  II.  Holmes,  Henry  <  The  Bar  Association  building,  42  West  Forty-fourth 

E  Knox  George  De  Forest  Lord,  Charles- F.  MacLean,  Street  and  43  West  Forty-third  Street,  was  completed  lu 

and  J.  Adriance  Bush.  J>>ly-  WM.    The  total  cost  of  the  property  was  S039,9,>0, 

3  The  governor's  action  in  removing  the  county  clerk,  of  which  $203.,'-,00  was  paid  foi  the  land,  $380,700  for 
on  the  Bar  Association's  charges,  was  one  of  the  prin-  the  building,  and  $55,750  for  furniture  and  hangings, 
cipal  causes  of  the  famous  factional  convulsion  in  his 


IIISTOUY    OK   TIIK    HKNCII    AND    HAK    (»K    NKW    V<»UK  20!) 

total  cost  for  books  and  binding  from  tlic  beginning  lia.s  been  in  excess 
of  !i;l(')(>,0()().  Credit  is  dne  to  the  late  .lames  Kmott,  almve  all  the 
other  members  of  the  association,  for  the  oigani/.ation  of  the  library 
and  its  present  spliMidid  ciiaractei'. 

The  following  is  a  list  of  the  presidents  of  the  Association  of  the 
Bar  from  tiie  beginning:  William  M.  Evarts,  1870  to  1879;  Stei)hen 
P.  Nash,  ISSO  and  18S1  ;  Francis  N.  Bangs,  1882  and  188n  ;  James  C. 
Carter,  1884  and  1885  ;  William  Allen  Bntler,  1880  and  1887  ;  Josej)h 
H.  Choate,  1888  and  1889;  Frederic  R.  Coudert,  1890  and  1891; 
Wheeler  H.  Peckham,  1892  to  1894  ;  Joseph  Larocque,  1895  and  189G  ; 
James  C.  Carter,  1897. 


THE  LIBRAKY  OF  THE  NEW  YORK  LAW  INSTITUTE. 

j|IIE  early  records  of  the  New  York  Law  Institute  strengthen 
the  statement  of  the  younger  Kent  that  the  establishment 
of  a  society  law  library  in  tlie  City  of  New  York  was  owing 
in  a  great  degree  to  the  influence  and  exertion  of  Chancellor 
Kent.  The  project  grew  out  of  the  necessity  of  providing  the  legal 
profession  with  an  extensive  and  easily  accessible  collection  of  books 
in  every  department  of  law,  and  such  collection  was  manifestly  be- 
yond the  means  of  individual  members  of  the  bar. 

A  vivid  personal  recollection  of  the  disappointments  and  embar- 
rassments which  he  experienced  in  his  own  youth  in  consequence  of 
the  lack  of  library  facilities  may  have  influenced  Charles  O'Conor  in 
old  age  to  make  his  generous  and  gracious  gift  to  the  Law  Institute 
Library.  There  are  incidents  in  his  career  that  show  his  lasting 
gratitude  to  those  who  in  early  life  gave  him  access  to  the  books  of  Jiis 
chosen  profession.  The  only  collections  of  law  books  of  any  extent  or 
value  in  or  near  the  City  of  New  York  were  private — the  library  of 
Chancellor  Kent  and  the  Bedford  House  library  of  Chief-Justice  Jay. 
A  union  of  efl'ort  and  means  became  an  urgent  necessity  in  order  to 
provide  even  the  active  practitioners  of  the  bar  with  the  working  tools 
of  their  profession. 

The  first  regular  meeting  of  the  society,  of  which  any  written 
record  is  extant,  was  held  in  pursuance  of  notice  at  the  American 
Hotel,  at  the  corner  of  Broadway  and  Barclay  street,  on  the  fifth  day 
of  February,  1828.,  At  this  meeting  were  present  Ogden  Hoffman, 
Thomas  Addis  Emmet,  Hugh  Maxwell,  James  W.  Gerard,  and  nearly 
all  the  leading  members  of  the  bar.  Ex-Judge  Jonas  Piatt  was  called 
to  the  chair,  and  Charles  G.  Troup  was  made  secretary.  An  election 
being  held,  James  Kent  was  chosen  president  and  Smith  Thompson, 
Peter  A.  Jay  and  Beverly  Robinson,  vice-presidents  of  the  association. 
Previously  to  this  meeting,  however,  on  the  19th  day  of  January,  1828, 
the  constitution  as  drafted  by  Chancellor  Kent  had  been  submitted  at 
a  conference  held  at  the  residence  of  William  T.  McCoun,  and  it  was 
subscribed  by  Chancellor  Kent,  Hugh  Maxwell,  William  T.  McCoun, 
John  Duer,  James  W.  Gerard,  Daniel  Lord,  George  Sullivan,  David 
Ogden  and  the  others  present— nineteen  in  all. 

In  the  beginning  the  Law  Institute  was  meant,  says  Mr.  Gerard, 
"  to  be  very  much  of  the  character  of  the  present  Bar  Association — not 
merely  a  library  but  an  association  which  should,  by  salutary  rules, 
guard  the  purity  of  the  profession  and  hold  a  check  upon  the  members 

210 


212  HISTOKY    OF   THE   BENCH   AND   BAR   OF   NEW   YORK 

through  investio-ation  and  the  power  of  expulsion."  It  was,  however, 
found  impossible  to  carry  out  such  views,  and  they  were  abandoned 
and  all  the  energies  of  the  members  were  turned  toward  establishing  a 
law  library  which  would  contain,  as  it  were,  the  law  of  the  larger  part  of 
the  civilized  world.  In  March,  1828,  the  library  of  Robert  Tillotson 
was  purchased  on  such  liberal  and  satisfactory  terms  that  by  resolu- 
tion the  free  use  of  the  library  was  voted  to  Mr.  Tillotson.  In  his 
visits  to  the  city  he  was  to  be  granted  its  privileges  in  the  same 
manner  as  if  he  were  a  regularly  elected  member. 

Chancellor  Kent  donated  a  set  of  his  Commentaries  on  American 
Law,  and  Mr.  David  S.  Jones  a  copy  of  Statham's  Abridgment,  a  book 
as  old  as  the  early  Caxtons  and  published  before  Columbus  sailed  from 
Palos,  and  which  for  many  years  kept  the  reputation  of  having  been 
the  first  printed  book  on  English  law. 

Many  of  the  old  classics  of  the  law,  rare  and  valuable  reports  and 
commentaries,  were  the  gifts  of  the  accomplished  scholar,  Peter  A.  Jay, 
president  of  the  Historical  Society,  and  the  eldest  son  of  Chief-Justice 
Jay.  In  the  future,  upon  the  Law  Institute's  tablet  of  grateful  recog- 
nition of  the  friends  and  lovers  of  its  library,  no  names  will  be 
engraven  deeper  or  more  conspicuously  than  those  of  Peter  A.  Jay  and 
Charles  O'Conor.  The  latter  is  the  ever-recurring  benefactor,  and  we 
run  across  Jay's  name  as  donor  in  the  books  and  treasures  of  the  Law 
Institute  library  frequently,  and  with  the  same  pleasurable  surjDrise 
and  interest  as  we  enjoy  when  we  note  Brockholst  Livingston's  name 
as  associate  counsel  in  the  great  law  cases  and  criminal  trials  of 
Alexander  Hamilton,  Aaron  Burr,  Richard  Harison  and  Egbert  Benson. 

In  the  early  part  of  the  year  1830,  it  was  resolved  to  petition  the 
legislature  of  the  state  for  an  act  of  incorporation,  and  accordingly  on 
the  22d  day  of  February,  1830,  the  Law  Institute  was  duly  incorporated 
by  chapter  48  of  the  laws  of  1830.  The  charter  and  by-laws  enacted 
in  accordance  therewith  were  accepted  and  adopted  at  a  meeting  of  the 
Institute  held  in  the  United  States  court-room  on  the  12tli  day  of 
May,  1830.  Many  of  the  old  historical  records  of  the  New  York  Law 
Institute  have  fortunately  escaped  the  devastation  and  vicissitudes  of 
fire  and  time,  and  attached  to  the  charter  and  by-laws  of  1 830  are  pre- 
served the  signatures  of  the  most  noted  men  of  the  New  York  bar  : 
James  Kent,  Thomas  Addis  Emmet,  Hugh  Maxwell,  John  Anthon, 
George  Griffin,  David  Graham,  Samuel  Jones,  Caleb  S.  Riggs,  Daniel 
Lord,  James  W.  Gerard,  William  Kent,  J.  Prescott  Hall,  Ogden  Hoff- 
man, William  M.  Price,  David  Dudley  Field,  Francis  B.  Cutting, 
Charles  O'Conor,  Samuel  J.  Tilden,  John  Jay,  William  Curtis  Noyes, 
Theodore  Sedgwick,  John  Graham,  Richard  O'Gorman,  John  K.  Porter, 
Henry  L.  Clinton,  James  T.  Brady,  William  M.  Evarts,  Joseph  H. 
Choate,  Stephen  P.  Nash,  Charles  F.  Southmayd,  Henry  D.  Sedgwick, 
Ashbel  Green,  Robert  S.  Green,  George  Bliss,  John  E.  Parsons,  Ed- 
wards   Pierrepont,   A.    Oakey    Hall,   John   McKeon,   Henry    Hilton, 


IIISTOKY    (»K   TIIK    UKNCII    AM)    HAI!    (H"    NKW    Yi 


i>i:{ 


AVli.v'l.T  II.  IN'ckliMiii,  KA<>ivtt  p.  \Vli.M.I.T,.I(>lin  K.  nimill,  Fivdnir  R. 
(\)U(l(M-(.  \Villi:ini  Allen  Hiitlcr,  Willinin  A.  ncnch,  Saimirl  BlMtclil'oid, 
Clarciict*  A.  Seward,  .liinics  C.  Carter,  Klilni  Root,  (ieori^'e  Iloadly, 
Joliii  V.  Dillon,  Charles  Tracy,  Aaron  .1.  N'anderpoel,  John  T.  IIolV- 
nian,  Kdwin  AV.  Stou^liton,  Frederic  AV.  llinrichs,  ,101111  K.  Do.s  Passos, 
Delos  ^^('Cnrdy,  Bnrton  \.  Harrison,  Albert  Stickney,  John  .J.  McCook, 
Francis  L.  Stetson,  Austen  G.  Fox,  William  C.  Whitney,  and  many 
others  equally  famous,  living  and  dead. 

In  the  Report  on  the  Libraries  oC  the  United  States,  published  at 
AVashington  in  18T()  by  the  government,  is  the  following  reference  to 
the  collections  of  the  New  York  Law  Institute  as  they  were  in  the 
centennial  year : 

The  Law  Institute  Library  has  become  a  success  in  the  highest  and  broadest 
sense,  and  now  furnislies  the  bencli  and  bai-  of  tlie  city  in  legal  treatises,  text-books, 
Auierioan  and  foreign  reports,  collections  of  leading  cases  and  trials,  resources  of 
incalculable  vahie.     The  library,  now  the  best  public  law  library  in  this  country, 


contains  over  20.000  volumes,  complete  sets  of  reports  of  courts  of  all  the  states, 
the  federal  courts,  tlie  latest  revTsions  of  the  statutes,  complete  reports  of  English, 
Scotch,  Irish,  and  Canadian  courts,  one  of  the  best  collections  of  the  session  laws 
of  all  the  states,  nearly  all  of  the  collections  of  trials,  one  of  the  largest  collections 
of  English  and  American  law  periodicals,  next  to  the  library  at  Washington  one 
of  the  best  collections  of  French  law  in  the  country.  It  has  also  a  very  fine  collec- 
tion on  the  literatui'e  of  the  law,  memoirs  and  biographies. 

To  this  may  also  be  added  as  of  interest  an  extract  from  a  recent 
press  notice : 

There  is  probably  no  othei-  law  library  in  this  country  which  has  upon  its 
shelves  so  rich  and  valuable  a  collection  of  rare  works  on  legal  topics.  It  possesses 
very  full  collections  of  i-eports  of  cases  in  the  American,  English,  Scotch,  Irish,  and 
Canadian  courts,  sets  of  American  and  English  statute  laws,  the  publications  of  the 
English  Record  Commission,  the  English  House  of  Loi-ds  and  House  of  Commons 
journals,  and  session  papers  going  back  to  1509.  The  state  papers  of  England  and 
America  are  a  feature  of  this  institution  of  peculiar  value.  Of  the  documents 
pertaining  to  American  history  are  the  charters  of  the  American  colonies,  congres- 


214  HISTOKY   OF  THE  BENCH   AND   BAR   OF   NEW  YORK 

sional  papers  from  1791  and  New  York  state  papers  since  1691.  The  English  and 
Irish  records,  in  which  this  library  is  peculiarly  full  and  rich,  contain  complete 
accounts  of  the  foundation  of  British  and  American  law. 

Among  the  rare  books  and  documents  of  the  library  which  will 
be  found  to  possess  interest  and  attraction  not  for  the  lawyer  only, 
but  for  the  antiquarian  as  well,  are  the  laws  of  the  ancient  Greek 
states,  the  property  laws  and  constitution  of  Athens,  the  political  and 
legal  arguments  of  the  Greek  statesmen  and  orators  from  Antiphon  to 
Isfeus,  and  the  laws  extracted  with  skill  and  discernment  by  Petitus, 
Pratelo,  Dareste,  and  Pardessus  from  the  works  of  the  orators,  his- 
torians and  philosophers  of  Greece  ;  the  entire  body  of  the  Roman 
law,  the  ante-Justinian  statutes  and  jurisprudence,  the  Justinian  books 
and  the  Romano-Barbarian  codes  ;  the  Leges  Barharorum  or  laws  of  tlie 
Lombards,  Franks,  Goths,  Vandals,  Alemanni  and  other  German  tribes; 


VIEW  OP    THE  NAJSROWS. 


elegant  editions  of  Hessels  and  Kern's  "  Lex  Salica,^^  and  Le  Gruchy's 
"  V Ancienne  Coutume  de  Normandie^''  the  Corpus  Juris  Canonici 
and  the  ancient  constitutions  and  canons  of  the  church  ;  the  Sea  Laws 
of  Oleron,  Wisby  and  the  Hanse  towns ;  the  restored  text  of  "  The 
Black  Book  of  the  Admiralty,"  a  venerable  book  of  great  authority  in 
the  Admiralty  Court,  and  which  disappeared  from  the  Admiralty 
Register  in  London  during  the  latter  part  of  last  century  "  ;  "  Guidon 
de  la  Mer^''  Maritime  Chapters  and  Ordinances  of  Amalphi ;  the  sup- 
posed Rhodian  laws  ;  "  11  Consolato  del  Mare,' '  of  which  an  edition 
was  published  at  Barcelona  in  1494,  and  which  is  the  earliest  general 
code  of  maritime  law  in  modern  Europe  and,  embracing  as  it  does  the 
legislation  of  many  kingdoms,  is  a  valuable  monument  of  the  learning 
of  the  middle  ages ;  repositories  of  ancient  laws  and  jurisprudence 
like  the  "  Corpus  Juris  Germanicm,''  "  Codigos  Antiguos  de  Espana^'' 
the  code  of  Godfrey  de  Bouillon,  the  first  Christian  King  of  Jerusalem, 


TIIK    HKNCIt    AM)    HAK    OF    NKW    Vn|;K 


I?!.') 


" /Ia'A'/.sv'.v  <7  hon  rsai/c.s  dc  lioijainne  dc  Jmisdlrni,""  ()ri<riii;illy  in- 
tituled "  Jjctfrcs  dc  t^vpnlerer  because  they  were  deposifed  wilh  miicli 
ceremony  in  a  great  ch<>st  in  the  (Miurcli  of  the  Holy  Sepuh'hre;  ])er- 
iiaps  the  best  of  tlie  feu(hd  coHections,  and  <'ertainly  interesting  as  a 
ccxU'of  hnvs  framed  by  a  body  composed  of  all  the  nations  of  Kiirope, 
of  a  li'gishitive  assembly  of  gallant  kiughts  like  Sir  Philip  Sidney — 
the  (lower  of  the  chivalry  of  the  world;  the  Ottoman  codes  and  the 
Koran,  commonly  called  the  "Alcoian  of  Mahoniet,"  in  French,  Ger- 
man, English  and  the  original ;  the  Ordinanc«^s  of  Menu,  translated 
from  the  Sanscrit  by  that  elegant  scholar,  Sir  William  .lones,  "i)erhaps 
the  only  hiwyer  (Hpially  conversant  with  the  year-books  of  West- 
minster, the  Attic  i)leadings  of    IsaMis  and  the  sentences  of  Arabian 


■■'7l 

,  ^. 

* 

e^/ft-t 

..OtS 

■k- .;..>".;■:;  ij 

ittlik 

I^^^^^H 

S~i-*S« 

H^ 

*-H 

I 

■ 

■BB| 

.,      - 

A 

t 

U- 

Tj 

JMiMLfl-J 


EAST    UIVKIt 


VOUK    HAY    FUOM    THE    BRIUIiE. 


and  Persian  cadis";  Sir  George  Staunton's  translation  of  the  code 
comprising  the  ancient  and  modern  jurisi)rudence  of  China  ;  the  laws 
of  the  Anglo-Saxon  kings  of  England ;  the  laws  and  the  Domesday- 
Book  of  William  the  Conqueror;  the  '■' JSIonumeida  Ecclesiastica 
Afif/licana,''  and  the  ancient  law  records  presented  in  the  tower  of 
London ;  the  Senchns  Mor  or  Brehon  code  of  Ireland  ;  the  ancient 
Brehon  law  tracts  ;  the  statutes  of  the  Irish  Parliament  from  1310  to  the 
close,  made  famous  by  the  orations  of  Grattan  and  the  Irish  patriots, 
and  containing  among  many  other  curious  things  the  law  of  1447,  en- 
titled "  An  Act  that  the  King's  Officers  may  travel  by  Sea  from  one  place 
to  another  within  the  Land  of  Ireland  ";  the  Acts  of  the  parliaments 
of  Scotland,  1124-]7()7  :  Laws  of  the  Scottish  Borders  and  the  ancient 
laws  and  customs  of  the  burghs  of  Scotland  ;  the  ancient  laws  and 
institutes  of  Wales,  containing  the  three  ancient  codes  and  the  law  of 
the  Kindred  and  Blood  Feud;  the  Code  Judiciare  of  the  French 
Revolution,  i)ublished  in  the  year  VII.  of  the  Republic  ;  the  Ordinances 
and  Statutes  of  Oliver  Cromwell ;  "  Codlce  di  Kapoleone  il  Grande 


216  HISTORY    OF  THE  BENCH   AND   BAR   OF  NEW   YORK 

pel  Regno  cV Italia,^''  printed  in  Milan  in  1806  ;  the  Laws  of  Virginia 
of  the  time  of  the  Bacon  Rebellion  ;  the  Yazoo  Fraud  Act  of  Georgia, 
giving  rise  to  opinions  by  the  most  eminent  lawyers  of  the  day, 
Robert  Goodloe  Harper,  Alexander  Hamilton,  Chief-Justice  Marshall : 
the  "  Scarlet  Letter  Act "  of  Massachusetts  ;  the  ''  Aaron  Burr  Act "  of 
Ohio,  and  the  Laws  of  the  "  Chamberlain  Legislature  "  of  South  Caro- 
lina ;  the  Purple  Book  of  Bruges  ;  the  laws  inscribed  upon  the  wax 
tablets  of  Pompeii  and  the  Bronze  Table  of  Aljustral ;  the  newly- 
discovered  law  code  of  the  Cretan  Gortyna,  reminding  us  forcibly  of 
the  query  of  the  Athenian  to  the  Cretan  in  Plato's  Laws,  "  Tell  me, 
stranger,  is  God  or  a  man  supposed  to  be  author  of  your  laws?";  the 
pleadings  of  the  jurist  Farinacci  in  behalf  of  the  beautiful  Roman  girl 
Beatrice  Cenci,  in  whose  dry  law  details  we  may  forget  Shelley  and 
Guerazzi,  but  not  so  easily  the  sad  pathetic  face  of  "  the  Fair  Par- 
ricide "  that  speaks  out  from  the  canvas  of  Guido  Reni ;  the  process 
against  the  rare  heroine  Joan  of  Arc,  whose  childhood  home  still  stands 
unchanged  in  the  village  of  Doremy  ;  the  pleadings  of  the  chivalrous 
advocate  Chaveau  de  la  Garde,  who  defended  Marie  Antoinette, 
Madame  Roland  and  Charlotte  Corday,  sometimes  called  the  "-Jeanne 
cTArc  de  la  RevoluUon,^''  who  rewarded  him  for  his  generous  and  deli- 
cate defence  by  permitting  him  as  a  mark  of  esteem  to  pay  her  prison 
debts ;  the  trial  of  Mary  Queen  of  Scots  at  Frotheringay  Castle,  and 
of  that  monarch  whose  example  the  Southern  Commissioners  at 
Hampton  Roads,  quoting  history,  urged  Lincoln  to  follow,  whereupon 
Lincoln,  as  Jefferson  Davis  relates,  naively  replied,  "he  knew  not 
much  history  but  he  did  know  that  Charles  I.  lost  his  head";  the 
ancient  Form  book  or  "  Image  of  Instruments,"  from  which  was 
drafted  the  prelude  to  Shakespeare's  will  and  his  profession  of  faith 
(though  we  do  not  know  if  the  copy  of  Shakespeare's  solicitor  was 
borrowed  from  one  of  the  seven  lawyers  at  Stratford  or  brought  with 
him  from  his  home  in  Warwick,  the  castle  town  in  heart  of  England's 
romance  and  history,  from  whence  came  Anne,  daughter  of  "  the  king- 
maker," so  quaintly  wooed  and  won  by  Richard  III.,  and  within  whose 
cloistered  chambers  of  Leicester  the  cold,  chaste,  white-souled  O'Conor 
placed  his  sentimental  gift  to  the  memory  of  Amy  Robsart);  cases  in  the 
Star  Chamber,  a  court  of  which  Lord  Somers  remarked  that  whatever 
its  evils,  it  punished  many  offenders  too  big  for  ordinary  justice — 
"  We  must  not  sitt  heare  to  punish  poore  snakes  and  lett  others  goe 
scot  free,"  is  the  language  of  one  of  its  judges  ;  the  report  of  the  trial 
of  the  "  wicked  Lord  Byron "  in  the  House  of  Lords  for  the  killing 
of  Mr.  Chaworth,  a  tragedy  which  we  read  and  recall  the  romance 
of  the  Sherwood  Forest,  the  Harrow-school  boy  visitor,  the  pleasure 
garden,  the  antique  oratory,  the  diadem  of  trees,  the  "  Dream  "  and 
the  pensive  silver-winding  stream,  near  which  she  sleeps  in  quiet 
and  peace — whom  in  love-lit  phrase  the  boy-poet  often  called  his 
"bright  morning  star  of  Annesley";  the  eighteenth  century  Wil- 


IlK    BKNCII    AM)    HAK   OK    M'.W    YolIK 


217 


liamsbur^^  Folios,    wliicli 
carry    us   back    as    by 


painting  oi 


\V 


orth 


Tlionipson    to    colonial 
(lays  in  the  Old    Domin- 
ion, even  to  the  si)ot  where 
\Vashin<j:ton     made     his 
lirst  venture  into  author- 
ship, to  the  site  of  the  his- 
toric   tavern   wherein    in 
1770    the    lirst    college 
Gi-eek-letter   society  was 
born,  and  ch)se  by,  witliin 
sound  of  the   Yorktown 
ouns,totheold  state  house 
in  which  the  boy  Jelferson 
stood  listening,  pale  and 
anxious,  while  his  friend 
Patrick  Henry  seemed  to 
speak  "  as  Homer  wrote," 
and  to  the  famous  path 
and  street  with  which  we 
are    all     familiar — once 
thronged    with    soldiers 
and  statesmen  from  Brad 
dock,  Lafayette  and  Ham- 
ilton to  Wintield    Scott, 
and  from  Madison,  Mon- 
roe, Randolph  and  Mar- 
shall to  Crittenden,  Wirt, 
Calhoun   and   Clay,   and 
leading — just    as    if    to 
typify  and  guide  its  stu- 
dents' lives — from  college 
grove  to  capitol ;   the  an- 
cient law  of  Holland  and 
the  Modern  Dutch  codes, 
with    the    commentaries 
made  classic  by  the  genius 
of  Grotius  or  the  learning 
of   modern   writers ;    the 
laws  and    ordinances    of 
New    Netherland,    1638- 
1674  ;  the  Duke  of  York's 
laws   enacted    at    Hemp- 
stead,   Long    Island,    in 


218  HISTORY    OF   THE   BENCH   AND   BAR   OF   NEW    YORK 

1664 ;  the  old  and  rare  corporation  ordinances  of  the  City  of  New 
York ;  the  documentary  history  of  the  colony  and  state ;  the  New 
York  City  Directories,  reaching  back  almost  to  the  beginning  in 
1786,  and  the  perfect  sets  of  New  York  and  Brooklyn  Corporation 
Manuals ;  the  Law  Register  of  Alexander  Hamilton,  from  1795  to 
his  retainer  in  a  case  by  the  Trinity  Church  Corporation  a  few 
weeks  before  the  fatal  July  day  of  1804  ;  the  Quaker  Girl,  or  "Man- 
hattan Well "  murder  case  of  Burr  and  Hamilton  that  gave  episode 
and  interest  to  Fay's  "  Norman  Leslie  " ;  the  test  case  of  Hamilton's 
under  the  Trespass  Act  against  Tories ;  the  Washington  copy  of  the 
Code  de  Louis  XIII.;  the  Plantation  Laws  of  Virginia,  with  auto- 
graph of  Richard  Henry  Lee,  who  moved  the  Declaration  of  American 
Independence  ;  The  Note-Book  of  Chancellor  Hardwicke  ;  Lord  Chief- 
Justice  Holt's  copy  of  the  Eyre  MSS.  Reports ;  and  many  volumes,  with 
autographs,  annotations  and  interesting  associations  of  famous  law- 
yers and  jurists  and  others,  the  gifts  of  members,  the  Kents,  father 
and  son,  Jay,  Evarts,  O'Conor,  Field,  Brady,  Bliss,  the  Abbotts,  etc. 

The  library  at  the  present  time  ranks  as  one  of  the  three  leading 
libraries  in  the  world  in  American  and  British  law  literature.  Its 
growth  since  its  organization  is  indicated  by  the  following  figures, 
showing  the  number  of  its  volumes  in  the  stated  years  in  which  esti- 
mates have  been  made : 


1828.. 

.  .  Library  organized. 
2,413 

1869 

13,500 

1842  . . 

1876 

20,270 

1851  . . 

4,544 

1880 

24,391 

1855  .  . 

6,000 

1885 

29,560 

1860  . . 

8,550 

1897 

48,257 

By  an  arrangement  with  the  city  authorities  the  library  from  the 
first  was  provided  with  accommodations  in  what  was  known  as  the 
"  Old  City  Hall,"  and  when  larger  space  was  required  rooms  were  pro- 
vided in  the  "  New  City  Hall "  on  Chambers  street,  in  which  it  remained 
until  that  building  was  destroyed  by  fire  on  the  19th  day  of  January, 
1854.  By  this  fire,  one  of  its  periodical  visitations,  the  library  lost 
eighty-one  volumes  and  had  many  others  seriously  injured.  Most  of 
the  furniture  and  the  adornments  of  the  rooms  were  also  injured  or 
lost.  A  committee  of  the  library,  consisting  of  Charles  O'Conor  and 
William  Curtis  Noyes,  adjusted  the  loss  with  the  insurance  companies 
at  $2,250,  retaining  the  books  and  property  injured,  and  this  sum  Avas 
accepted  in  compromise  and  promptly  j)aid.  For  some  time  after 
this  fire  the  library  had  a  shiftless  existence,  and  very  often,  in  its 
impecunious  condition,  when  its  inability  to  pay  rent  or  other  debts 
was  made  a  matter  of  record,  Charles  O'Conor  came  to  its  aid  with 
loans  of  large  sums  of  money.  In  its  hour  of  trial  and  tribulation  the 
library  was  also  generously  remembered  in  large  donations  of  books 
by  James  R.  Whiting,  Joseph  Blunt,  Charles  Edwards,  Theodore 
Sedgwick,  and  the  secretaries  of  state  of  the  several  American  states. 


IIISIOUV    (•!■'     rilK    MKNCII     AND    H\K    o|'    M;\V     VoIIK  21!) 

.lanit's  T.  Hriuiy  piovcd  :in  aclivc  friciid,  sind  wilh  Cliiirlcs  'l'i;icy  iii:i<l«' 
icju'iitt'd  niul  iii'-cnt  iippt'ids  to  tlic  hoiird  of  siipcivisors  to  curry  out 
(he  riiiidaiiK'UlMl  ;i,<;i-('(Mii(Mit  and  understanding  (liat  was  enti^rcd  into 
with  tilt' coi'poration  at  tlu*  or<,^ani/,ation  of  the  society  to  })rovide  it 
with  suitable  rooms  for  its  use;  or,  at  least,  to  malie  ^ood  the  losses 
that  had  resulted  to  tlie  association  from  the  violation  of  this  compact. 
For  a  time  the  library  was  closed  and  its  books  stored,  and  then  tliey 
were  i)laced  in  the  basement  of  the  court-house,  in  quarters  so  small 
that  only  a  part  of  the  books  could  be  shelved,  so  that  the  utility  of 
the  libraiy  was  mucli  diminished,  and  the  membershi])  in  consequence 
fell  off. 

In  April,  18.')5,  a  room  was  secured  on  the  second  floor  of  No.  45 
Chambers  street,  fronting  the  park,  and  in  the  spring  of  18.09  the 


;    ,j     ■;■  I     •        [pjp  Nigrum 


fill;   IJ        f'T-'  m  '       nw,      jj|^;,|; 


library,  by  an  arrangement  with  the  United  States  government,  was 
removed  to  the  building  in  the  rear  of  the  United  States  courts  at  No. 
41  Chambers  street.  At  this  time  the  cost  of  the  books  and  furniture, 
as  appears  by  the  Brady  memorial,  had  amounted  to  about  850,000. 
In  its  quarters  in  the  old  Burton  Theatre  building  Mr.  David  E. 
Wheeler  made  a  bequest  of  $1,000  to  the  librar-y,  and  Mr.  Hugh  Max- 
well pi'esented  it  with  a  costly  silver  vase  and  the  excellent  portraits  of 
Thomas  Addis  Emmet  and  Chancellor  Kent.  The  marble  bust  of  its 
late  president,  James  T.  Brady,  was  jiresented  to  the  institute  shortly- 
after  his  death  in  18G9. 

Its  early  and  late  benefactor,  Charles  O'Conor,  noted  for  his  char- 
acteristic, fervent  and  proud  love  of  the  city  of  his  birth,  in  1884,  by  a 
generous  bequest  in  his  last  will  and  testament,  executed  on  the 
eightieth  anniversary  of  his  birthday,  gave  to  the  library  821,000  in 
cash,  all  his  bound   volumes,   entitled  "My  Own   Cases"  and  "My 


220  HISTORY    OF   THP:   BENCI*  AXD   BAK   of   new   YORK 

Opinions,"  with  the  silver  plate  and  vase  that  had  been  presented  to 
him  by  the  ladies  and  lawyers  of  the  City  of  New  York. 

In  May,  1893,  David  Dudley  Field,  its  oldest  living  member,  pre- 
sented to  the  library  his  private  copy  of  a  large  photograph  of  the 
scene  when  he  proposed  an  International  Code  in  1866  before  the 
British  Association  for  the  Promotion  of  Social  Science  ;  also  an  en- 
graved portrait  of  himself  and  a  valuable  collection  of  books,  including 
complete  sets  of  the  annuals  and  reports  of  proceedings  of  interna- 
tional law  societies,  draft  codes  of  different  countries,  his  own 
speeches,  arguments,  and  many  miscellaneous  pajjers.  In  February, 
1897,  Mr.  James  R.  Cuming  authorized  Mr.  Winters  as  librarian  to 
present  to  the  New  York  Law  Institute  in  his  behalf  a  marble  bust  of 
Francis  B.  Cutting.  It  is  a  beautiful  work  of  art  and  a  faithful  like- 
ness of  the  eminent  lawyer.  Mr.  Cutting  was  early  enrolled  a  member 
of  the  library.  He  is  remembered  as  an  intimate  friend  of  the  great 
leaders  of  the  bar  in  other  days,  and  as  being  himself  a  well-known 
figure  in  the  profession. 

In  July,  1875,  upon  the  completion  of  the  new  post  office  building 
in  the  City  Hall  Park,  the  library  was  assigned  spacious  rooms  on  the 
fourth  floor  of  that  building,  and  from  its  removal  to  the  new  quarters 
it  entered  upon  an  era  of  progress  and  prosperity.  It  was  then  under 
the  presidency  of  Charles  O'Conor,  whose  predecessors  in  office  had 
been  James  T.  Brady,  the  peerless  orator ;  John  Anthon,  the  great 
nisi  prius  advocate,  "  who  began  his  career  amidst  a  race  of  giants  "  ; 
Samuel  Jones,  who  was  classed  by  Mr.  O'Conor  with  John  Wells,  "the 
prince  of  bar  orators,"  and  Chancellor  Kent  of  world-wide  fame. . 
Aaron  J,  Yanderpoel,  a  keen  lover  of  good  books,  a  kindly,  con- 
siderate official,  a  public-spirited  citizen,  one  of  the  best  equipped 
lawyers  of  the  New  York  City  bar  and  its  most  popular  member,  held 
the  position  of  honorary  librarian. 

Under  the  combined  influence,  intelligent  interest  and  active  labors 
of  these  two  men,  the  library  of  course  made  energetic  and  rapid  strides 
in  usefulness  and  prosperity,  and  became  favorably  known  to  the  pro- 
fession and  to  the  .press  and  the  public  as  well.  Its  broken  sets  were 
completed,  and  there  was  secured  an  approximately  and  reasonably 
complete  collection  of  books  in  every  department  of  jurisprudence. 

In  1888  changes  were  made  in  the  library  rooms  under  the  super- 
vision of  the  government  superintendent  of  construction,  Mr.  William  ' 
J.  Fryer,  and  by  a  judicious  arrangement  of  galleries  and  alcoves  the 
shelving  capacity  of  the  library  was  almost  doubled.  The  new  classi- 
fication and  re-arrangement  of  the  books  have  continued  to  the  present 
time. 

On  the  main  entrance  floor  are  kept  the  law  reports,  law  journals 
and  reports,  digests  of  the  United  States,  the  different  American  states, 
England,  Ireland,  Scotland  and  the  Canadian  provinces.  In  the 
gallery  are  located  the  American  and  English  commentaries,  the  die- 


HISIOKY    OK    IIIK    UilNCII    AM)    HAIJ    OK    N  K\V    V(»i;K  221 

tioiiarics,  cyclopaMlias  and  hooks  of  i'('f<>r<'nc(',  liistorical  and  hio^^raplii- 
cal  woiks,  llonian  law,  trials,  the  staliilc  law,  revisions,  codes,  di^n-sts, 
session  laws  and  indi('<>s  to  statutes  of  all  Kn^lisli-sjx'akin;,'  countries; 
the  codes,  coninientaries  and  selected  law  ))ei'iodicals  of  (ierruany, 
France,  Austria,  Spain,  Italy,  Holland,  Bel<;iuni,  Switzerland,  Turkey, 
Mexico,  etc.,  etc. ;  and  on  the  upi)ennost  floor  the  Court  of  Ai»peals 
cases,  reports  of  parliamentary  and  congressional  debates,  constitu- 
tional convention  journals  and  debates,  American  and  foreign  state 
jiapers,  Unitetl  States  and  New  York  legislative  documents  and 
journals,  Ncav  York  City  legislative  documents  and  de])artment  re- 
])orts,  corporation  manuals,  books  of  statistics,  atlases  and  maps,  city 
directories,  miscellaut'ous  journals,  association  reports.  House  of  I^)i'ds 
and  House  of  Commons  journals,  and  tlie  Charles  O'Conor  and  other 
valuable  donations. 

Within  the  limit  of  this  article  it  is  impossible  to  speak  at  length 
or  in  detail  of  the  particular  treasures  of  the  library's  collections  or  of 
the  many  volumes  with  interesting  and  curious  histories  and  by  both 
contents  and  bibliographical  value  worthy  of  especial  and  extended 
notice.  The  library,  however,  is  not  rich  in  the  treasures,  fancies,  or 
queer  conceits  of  prosperous  book-collectors.  A  law  librarian  is  apt 
to  value  a  London  imprint  of  Grotius  as  much  as  an  Elzevir,  and  he 
hardly  takes  notice  if  his  huge  folios  are  by  Machlinia,  Pynson, 
AVynkin  de  "Worde  or  Baskett.  The  library  possesses  no  editions  de 
luxe  and  but  few  first  editions,  editiones  principes  collected  as  such. 
Its  incunabla  came  by  gift  or  purchase  because  of  the  books'  contents 
and  practical  utility,  and  not  by  reason  of  the  mere  date  of  the  imprint 
or  the  signatures  of  famous  printers. 

Its  bindings,  especially  in  the  department  of  foreign  law,  are 
noticeable  and  elegant,  but  not  such  as  would  have  justified  the 
sumptuous  taste  or  superb  skill  of  Padeloup,  Derome,  Le  Gascon,  a 
Grolier  or  the  lovely  designs  of  Clovis  Eve,  and  yet  if  this  magnificent 
library  should  be  destroyed  by  fire,  from  whose  dreaded  visitations  it 
lias  made  so  many  narrow  escapes,  it  would  be  perhaps  safe  to  assert 
that  it  would  be  as  impossible  to  replace  it  in  its  integrity  as  to  restore 
to  the  book-shelves  at  Mount  Yernon  the  scattered  volumes  of  Wash- 
ington's library  ;  or  to  the  apartments  of  "  The  Albanv  "  the  books, 
letters  and  manuscripts  of  Lord  Byron  ;  or  to  secure  the  "  Corambis" 
copy  of  "  Hamlet "  ;  or  a  half  dozen  copies  of  Shakespeare's  books  and 
letters  ;  or  the  manuscript  plays  that  were  burnt  with  the  Globe 
Theatre  ;  or  a  few  Yaldarfer's  Boccaccio,  Yenice,  1471,  the  rarest  book 
in  the  world  ;  or  the  Naples,  1474,  edition  of  Horace,  the  rarest  of  the 
classics  ;  or  the  INIentz  Cicero  of  1465,  the  first  classic  put  into  print ; 
or  Cliamaco's  book,  the  first  printed  in  the  new"  world  ;  or  the  original 
edition  of  the  book  printed  at  Saint  Die  in  1507,  first  suggesting  the 
name  "America"  for  the  newly-discovered  western  continent;  or  to 
find  in  modern  book-marts  smaller  books  than  the  "Thumb  Bible''  or 


222 


HISTORY  OF  THE  BENCH  AND  BAR  OF  NEW  YORK 


larger  than  the  giant  volumes  of  the  Escurial,  or  cheaper  than  the 
bound  "Penny  Testament,"  or  more  curious  than  the  Elegy  printed 
on  black  paper  with  white  letters  ;  or  a  perfect  copy  of  the  first  Aldine 
Virgil ;  or  the  lost  Constitutions  of  Aristotle  ;  or  the  silent  first  issue 
of  "  Pilgrim's  Progress "  ;  or  the  "  Morton's  Hope "  chronicle  of 
Motley's  and  Bismarck's  student  life  at  Gottingen  ;  or  the  borrowed 
copies  of  Coke  and  Blackstone,  with  which  Webster  and  Lincoln 
began  in  youth  the  study  of  law." 


i>:  if 


STOR  LIBRARY. 


The  work  of  the  recent  decade  of  years  and  of  the  new  epoch  of 
the  library's  progress  and  development  may  be  fitly  epitomized  and 
illustrated  in  the  statement  that  the  Law  Institute  Library  has  been 
either  the  pioneer  or  of  the  pioneers  : 

1.  In  securing  complete  sets  of  American,  English,  Irish,  Scottish, 
Canadian,  and  Australian  law  rei)orts. 

2.  In  attempting  to  collect  the  law  journals  of  the  United  States, 
England,  Canada,  Ireland,  Scotland,  British  colonies,  France,  Germany, 
Austria,  Spain,  Italy,  Holland,  Belgium,  Switzerland,  etc. 

3.  In  attempting  to  collect  complete  sets  of  the  revisions,  codes 
and  session  laws  of  each  state  and  territory  of  the  Union,  so  as  to  pre- 
serve on  the  shelves  of  the  Law  Institute  an  almost  unique  and  price- 
less historical  memorial  of  American  state  and  statute  literature. 

4.  In  making  the  attempt  to  collect  official  copies  of  the  foreign 
codes,  civil,  commercial,  criminal,  procedure  and  the  standard  con- 

'  Since  this  was  written  there  has  come  into  the  possession  of  the  writer  Lincoln's  first  law  book,  one  of  the 
very  earliest  relics  of  hk  boyhood  days. 


iiisroKv   OK    iiii;  hi;m  II    and   hak  (»k   m;\v    mii;k  -J-JJ 

(inontal  law  .'uilhors  nnd  coiimicnliitoi-s,  illiisfialrd  in  l-'icnch  litcraliir*; 
by  the  writings  of  ranlcssus,  I'olliicr,  \'aliii,  Clriiac,  Moiilcscinit'ii, 
Vattcl,  Ciijas,  D'Agiiesscau,  Doinat,  OHila,  Ji()ulay-l»aty,  (Jlasson, 
llautefeuille,  Laurent,  Merlin,  Locro,  Poiiillet,  ToiiUier,  Calvo,  I'radicr- 
Fodoro,  Caiiohy,  Coutler,  Kolin-.Iaequeniyns,  Deniolombe,  Bedairide, 
C'resp,  Ortolan,  Riviere,  Desjardins,  Valroger — and  in  German  litera- 
ture by  the  writings  of  Savigny,  Thibaut,  Mittennaier,  Feuerbach, 
(}riinni,  Hugo,  Koch,  Kant,  Bulineiincq,  Hoist,  Puchta,  (irotefend,  HelT- 
tei',  Windscheid,  (lareis,  Molil,  Lewis,  Vangerow,  Borchardt,  Martens, 
Deruberg,  Sohin,  Bai-.  Bluntscldi,  Gneist,  HoltzendoifV,  Tliering,  and  by 


UTU    fHUM    1.EO.N 


the  recent  works  of  the  German  collaborators,  the  Series  on  Com- 
mercial Law,  edited  by  Endemann ;  German  Jurisprudence  by  Bind- 
ing ;  the  recent  German  codes  by  Bezold ;  Forensic  Medicine  by 
Maschka ;  International  Law  by  Holtzendorflf,  and  Public  Law  by 
Marquardsen. 

5.  In  collecting  the  English,  French  and  German  translations  of 
foreign  codes  and  the  miscellaneous  writings  and  association  i)ro- 
ceedings  of  the  German  and  P'rench  jurists. 

6.  In  collecting  the  completed  works  of  the  statesmen  and  orators 
of  all  times  and  countries :  Demosthanes,  iEschines,  Pericles,  Isocra- 
tes,  Cffisar,  Cicero.  Hortensius,  Stein,  Metternich,  Bismarck,  Grotius, 
Richelieu,    Mazarin,   Neckar,   Mirabeau,   Tallevrand,   Gnizot,   Thiers, 


22-i       HISTORY  OF  THE  BENCH  AND  BAR  OF  NEW  YORK 

Cavour,  Castelar,  Wolsey,  More,  Bacon,  Burleigh,  Raleigli,  Strafford, 
Cromwell,  Hampden,  Temple,  Somers,  Halifax,  Oxford,  Bolingbroke, 
Walpole,  Pulteney,  Chatham,  Chesterfield,  Mansfield,  Burke,  Grat- 
tan,  Curran,  Plunket,  Pitt,  Fox,  Erskine,  Sheridan,  Windham,  Wilber- 
force,  Holland,  Mackintosh,  Canning,  Brougham,  "Wellington,  Grey, 
Peel,  O'Connell,  Palmeston,  Russell,  Bright,  Cobden,  Beaconsfield, 
Gladstone.  Washington,  Franklin,  Hamilton,  Jefferson,  Lee,  Henry, 
Otis,  Madison,  Monroe,  Marshall,  Gallatin,  Jay,  Morris,  the  Adamses, 
Ames,  Story,  Legare,  Prentiss,  Wirt,  Randolph,  Webster,  Everett, 
Winthrop,  Clay,  Calhoun,  Seward,  Sumner,  Lincoln,  Phillips,  etc.,  etc. 

7.  In  collecting  the  writings  and  biographical  sketches  of  the  great 
New  York  lawyers  of  the  past  and  the  present :  William  M.  Evarts, 
Charles  O'Conor,  James  T.  Brady,  James  W.  Gerard,  David  Dudley 
Field,  Daniel  Lord,  AVilliam  Curtis  Noyes,  Thomas  Addis  Emmet, 
Ogden  Hoffman,  John  Wells,  James  Kent,  Brockholst  Livingston, 
Aaron  Burr,  Alexander  Hamilton. 

8.  In  collecting  the  rare  pamphlets,  addresses  and  law  arguments 
of  Rufus  Choate,  Harrison  Gray  Otis,  Thomas  S.  Grimke,  Robert 
Goodloe  Harper,  Henry  Wheaton,  Nathan  Dane,  Theophilus  Parsons, 
William  C,  Preston,  John  Sergeant,  Charles  G.  Loring,  Caleb  Cushing, 
Horace  Binney,  William  Pinkney,  Henry  Stanbery,  Richard  H.  Dana, 
Jr.,  George  S.  Hillard,  Benjamin  R.  Curtis,  and  others,  whose  brilliant 
reputations  are  fast  becoming  traditional  because  the  memorials  of 
their  busy  lives  have  been  preserved  in  no  tangible  book  shape. 

9.  In  collecting  the  tracts,  pamphlets,  essays,  magazine  articles  and 
newspaper  discussions  relating  to  new  and  important  questions  of  the 
day,  American  fisheries,  bicycle  law,  bimetallism,  charters  and  by-laws, 
civil  service  reform,  club  law,  codification,  commercial  trust  combina- 
tions, constitutional  law,  corporation  law,  death  penalty,  electing 
(Jnited  States  senators,  electricity  and  motor  law,  foreign  immigration, 
French  spoliation  claims,  Geneva  Arbitration  award,  habeas  corpus, 
hypnotism  as  a  crime,  impeachment  trials,  in  come  tax,  Indian  laws, 
inheritance  tax,  international  arbitration,  international  law,  interstate 
commerce,  irrigation  legislation.  Jay's  treaty,  land  registration,  law 
reform,  law  schools,  libraries,  light  railways,  liquor  laws,  Monroe  Doc- 
trine, municipal  government,  neutrality.  New  York  state  and  city  his- 
tory, poisons  and  poisoning  trials,  presidential  elections,  rapid  transit, 
referendum,  sanitary  legislation,  social  science.  South  African  Republic 
laws,  tariff  reform,  telephone  and  telegraph  law,  theatre  law,  voting 
reform,  voting  trusts,  etc.,  etc. 

The  Law  Institute  Library  has  been  one  of  the  first  and  one  of  the 
most  active  in  every  movement  to  make  law  libraries  comprehensive 
and  useful,  and,  as  far  as  means  and  time  permitted,  practically  com- 
plete. It  has  made  itself  an  institution  worthy  of  the  great  metropolis, 
and  by  reason  of  the  prestige  achieved  it  is  daily  visited  and  used  by 
I)ractical   lawyers  more  than   any  other  library  in   the   world.      Its 


1 


iiisiouv  OK  nil';  hkncii  and  nwi  ok  nku    vokk  'J'J.") 

prospTit  ofliciM-s  (]81)7)  arc:  Joscj)!!  II.  (Mioatc,  i)rosi(l<'iit ;  Kdwai'd 
I*atters()n  and  Wlieelor  II.  Pcckhaiii,  vic(>-i)resi(l«'nfs  ;  William  I*. 
('liambcrs,  secretary;  George  H.  Adams,  treasurer;  George  (!.  Moll. 
Thomas  Thaclier,  Austen  G.  Fox,  .lames  MrKeen,  Albei-t  Stickney  and 
(teorge  G.  Frelinghuysen,  executive  committee,  and  Cliirord  A.  Hand, 
James  A.  McCreery  and  George  G.  De  Witt,  auditing  committee. 


PERSONAL  REMINISCENCES  OF  SIXTY  YEARS  AT 
THE  NEW  YORK  BAR/ 

F  those  who  sixty  years  ago  were  with  me  at  the  bar  almost 
all  have  "  gone  forth  into  the  great  darkness,"  and  the  very 
names  of  most  of  them  are  as  unknown  to  most  of  you  of 
this  generation  as  though  they  had  never  been.  Only  two  or 
three  remain  who  can  remember  them.  They  were  men  of  study, 
learning,  toil ;  men  of  pride,  ambition,  hope  ;  men  who  largely  shared 
the  public  attention  and  respect.  Some  of  them  had  fame,  some  had 
fortune,  some  had  disappointment— all  had  death. 

At  that  time  there  lingered  in  this  city  several  lawyers  whose 
admission  to  practice  was  more  than  a  century  ago.  Among  them 
were  Egbert  Benson,  Chancellor  Kent,  Morgan  Lewis,  Aaron  Burr, 
Josiah  Ogden  Hoffman,  Jacob  Morton,  Edward  Griswold,  Jacob  Rad- 
cliffe,  Richard  Varick,  and  Joseph  Strong.  Of  these  I  think  that 
Chancellor  Kent,  who  died  in  1848,  survived  the  longest,  and  few  now 
present  can  remember  him,  while  only  one  or  two  of  us  have  seen  the 
others  wiiom  I  have  named. 

It  was  my  privilege  and  happiness  to  pass  my  clerkship  as  a 
student  at  law  in  the  office  of  Chancellor  Kent,  where  his  son  (only 
less  distinguished  than  the  chancellor),  William  Kent,  was  associated 
with  him. 

The  chancellor  retired  from  the  bench  on  the  31st  of  July,  1823,  on 
completing  his  sixtieth  year,  such  being  the  limit  of  age,  under  the 
constitution  of  1821  (then  in  force),  to  wiiich  any  incumbent  could 
hold  the  office.  His  judicial  labors  had,  of  course,  received  only  scanty 
compensation ;  but  after  he  withdrew  from  them,  though  he  never 
appeared  at  the  bar,  yet  his  opinions,  which  were  eagerly  sought,  not 
only  here,  but  from  every  part  of  the  country,  and  his  services  as 
counsel  in  important  cases,  and  his  great  work,  The  Commentaries, 
were  all  more  amply  rewarded.  When  he  left  the  bench  (and  indeed 
to  the  end  of  his  life),  he  was  in  the  fulness  of  his  mental  vigor,  and 
strength,  and  wisdom,  and  of  the  goodness  and  gladness  of  his  guileless 
heart.  His  serene  clieerfulness  and  kindness  delighted  all  who  had 
intercourse  with  him.  He  was  "in  wit  a  man,  simplicity  a  child." 
His  personal  qualities  secured  to  him  the  love,  as  his  learning,  wisdom, 
dignity,  and  purity  did  the  reverence  of  all.  As  remarked  by  Judge 
Duer,  in  his  eulogiura  on  the  chancellor,  "  Although  his  life,  from  his 

'  From  an  address  by  the  Honorable  Benjamin  D.  Silliman,  al  (he  coniplinientary  dinner  tendered  to  him  by 
the  bar  of  New  York  and  Brooklyn,  May  2-1,  1H8'.),  tlie  sixtieth  anniversary  of  his  admission  to  iiractice. 

•206 


^S^ 

f  "' 

L   -:;,i,i  ..iii.iH,,^;.  M 

j^Bli 

iM^^^^n     B 

^QW 

H 

HH  ' 

JT^fi^jilES   lETEWir  HJL. 


^^^ 


UK    KKNCII    AND    HA  K    (»K    NKW     VolJK 


227 


yotitli,  \v:is  cnipliMticnlly  :i  life  ol"  scvcic  iind  coiisImiiI  labor,  exliMiisf^ 
iiiu-  nicdilalion,  and  icsolnte  sell'-dtMiial,  yet  these  habits  liad  not  the 
ell'ect  of  impairiiii;'  in  tiie  sli^-litest  de<::ree  t  he  cheeiliilness,  the  vivacity, 
and  even  th(>  gayety  oi"  his  temper.  When  he  mixed  in  society,  instead 
of  bein,i>-  gloomy,  sih'nt,  oi'  reserved,  lie  was  nniformly  lively,  so(;ial, 
alVabh',  commnnicative." 

I  have  nevt'i'  known  any  other  man  whose  ivadinj^  and  study 
were  so  "nniversal"  as  his.  It  could  not  be  said  of  him,  as  of  Loid 
Bronij^haTii,  that  "he  knew  a  little  about  everything,  and  not  miu-li 
about  anything,"  for  the  chancellor  knew  all  about  eveiything  that 
he  had  ever  studied,  and  he  had  studied  almost  everything.  His  great 
miscellaneous  library  was  "a  curiosity,"  not  merely  in  its  number  of 
works  on  nearly  every  subject,  but  in  the  "  commentaries "  which  he 


NEW  YORK  STAGE  COACH,  EAMLY  VEAUS  OF  TUE  NINETEENTH  CENTURY. 


had  inscribed  in  almost  every  volume,  showing  not  only  that  he  had 
read  it  thoroughly^  but  referring  to  other  w^orks  (which  he  had  also 
read")  on  the  same  subject,  and  often  criticising  and  dissenting  from 
the  author,  or  amplifying  or  qualifying  what  he  had  said.  In  con- 
nection with  his  universal  reading  was  his  absolutely  phenomenal 
memory.  He  literally  forgot  nothing.  A  mind  so  stored,  and  with 
its  treasures  so  secured,  could  not  know-  solitude.  It  found  within 
itself  abundant  and  choice  companionship.  On  this  point  I  may 
repeat  (what  I  mentioned  on  another  occasion)  that  during  his  last 
illness  he  passed  many  long  and  silent  watches  of  the  night  without 
sleep.  When  asked  whether  in  those  solitary  hours  he  suffered  from 
sadness  and  depression,  he  replied  that  he  did  not,  but  that,  on  the 
contrary,  he  then  derived  great  satisfaction  in  mentally  reviewing 
sometimes  some  leading  rule  of  law,  going  back  to  its  origin,  to  the 
reasons  from  which  it  sprang,  and  then  recalling  in  their  order  the 


228  HISTORY   OF   THE   BENCH   AND   BAR   OF   NEW   YORK 

subsequent  cases  in  England  and  in  this  country  in  Avhich  it  liad  been 
considered,  shai)ed,  enlarged,  or  qualified,  down  to  the  fmal  settled 
rule  ;  at  other  times  he  would  select  some  period  of  history,  perhaps 
some  English  reign,  and  recall  its  politics,  its  law,  its  eminent  men,  its 
military  acts,  and  its  literature,  in  connection  with  the  contempo- 
raneous history  and  condition  of  other  countries — sometimes  a  cam- 
X)aign,  perhaps  of  Alexander,  or  Cffisar,  or  Marlborougli,  or  Napoleon, 
with  its  plan,  its  policy,  its  incidents,  and  its  results. 

But,  gentlemen,  though  I  never  tire  when  Chancellor  Kent  is  the 
theme,  I  must  remember  that  I  may  tire  you. 

At  the  remote  time  of  which  I  have  spoken  (1829),  Judges  Hoffman 
and  Jones  were  on  the  bench  of  the  Superior  Court,  and  of  the  other 
ancient  lawyers  to  whom  I  have  alluded  Aaron  Burr  was  the  only  one 
then  prominent  and  eminent  at  the  bar,  though  he  can  hardly  be  said 
to  have  been  at  that  time  engaged  in  general  practice. 

Colonel  Bun''s  personal  appearance  was  remarkable.  His  black 
eyes  were  keen  and  penetrating.  He  was  small  in  stature,  and  slen- 
der, yet  very  formal,  dignified,  reserved,  and  stately  in  his  bearing. 
Whether  in  the  court-room,  the  street,  or  elsewhere,  he  seemed  iso- 
lated and  alone. 

Among  them,  but  not  of  them;  in  a  shroud 
Of  thoughts  which  were  not  their  thoughts. 

I  once  called  on  him  with  Doctor  Hosack,  who  was  the  surgeon  in 
the  duel  between  General  Hamilton  and  Colonel  Burr,  and  passed  an 
hour  with  him  at  his  house  in  Reade  street  (in  the  rear  of  the  Stewart 
building),  and  was  impressed  by  the  grace  and  elegance  of  his  man- 
ners, and  the  ease  and  interest  of  his  conversation,  which,  however, 
was  captious  and  cynical  as  regarded  men  of  the  Revolution.  He  said 
that  we  had  no  just  idea  of  their  relative  merit  or  importance,  or  of 
their  action — that  he  at  one  time  intended  to  write  a  history  of  that 
period,  and  to  that  end  had  (when  in  the  senate)  with  his  own  hand 
largely  transcribed  from  documents  to  which  he  then  had  access,  but 
that  his  manuscript,  with  much  other  material  which  he  had  collected 
for  his  work,  was  lost  or  destroyed,  and  that  he  had  no  longer  suffi- 
cient interest  in  the  subject  to  induce  him  to  renew  his  labor.  He 
added  that  it  was  moreover  now  too  late— that  the  world  had  adopted 
the  lie  as  its  creed,  and  that  it  preferred  to  believe  and  would  adhere 
to  that  lie  rather  than  substitute  the  truth. 

Colonel  Burr  died  in  September,  1836,  at  the  age  of  eighty — thirty- 
two  years  after  he  killed  General  Hamilton. 

Sixty  years  ago  the  world  was  away  back  from  where  it  is  now 
We  live  in  a  very  different  world  from  that  of  1829.  Then  the  vast 
West  was  an  unexplored  wilderness  ;  the  Oregon  heard 

no  sound  save  its  own  dashings ; 
no  steamer  crossed  the  sea ;  no  telegraph  annihilated  distance ;  no 


•  K     rilK    HKNCII     AM)    HA  K 


m:w    Voi;k 


a2'.) 


submariiio  cable  uiiiifd  coiitiiit'iils ;  tlic  Iclcijliouc  mikI  pliotognij))! 
were  unknown;  no  t^Icctric  li,i;lil  converted  ni<,dil  into  day;  no  rail- 
load  ix'iietiated  tlie  wilderness,  or  broii<^lit  distant  cities  and  icuions 
into  close  })roxiinily  and  prosperous  intercourse. 

The  countiy  was  then  jxjor ;  the  people  were  pooi- ;  theconi]»en- 
sation  for  labor,  whether  manual  or  prolessional,  was  meagre;  mojiey 
was  scarce,  and  it  was  as  diflicult  (save  by  statute)  to  keep  down  the 
rate  of  interest  to  seven  per  cent,  as  it  is  now  to  raise  it  up  to  four. 
New  Yoi-k  was  thriving  in  a  moderate  way,  but  tlie  amount  of  litiga- 
^  tion,  the  interests  involved  in  it,  and  the  fees 
for  legal  services  were  very  small  conijjared 
with  those  of  the  present  day  of  vast  poi)ula- 
tion.  of  unlimited  commerce,  of  great  corpora- 


MLURAY   STREET   IN    1822. 


tions,  of  unbonnded  wealth,  and  of  the  new  and  varied  and  momen- 
tous and  constantly  occurring  questions  arising  from  such  a  changed 
condition. 

Gentlemen,  I  do  not  propose  to  "  fight  all  the  battles  o'er  again," 
but,  with  your  leave,  will  refer  to  some  few  of  the  many  changes  affect- 
ing our  calling  which  have  occurred  since  my  admission  to  the  bar. 

The  judicial  and  professional  force  at  the  earlier  period  of  which 
I  have  spoken  was  widely  different  from  that  of  to-day.  Then  there 
were  in  this  city  about  495  lawyers,  now  there  are  some  5,575.  Then 
there  were  in  Brooklyn  14  lawyers,  now  there  are  some  1,660.  Respect- 
ing a  substantial  part  of  professional  business,  I  may  mention  that 
sixty  years  ago  (1829)  in  the  register's  office  in  this  city  the  volumes 
(or,  as  we  classically  tenn  them,  libers)  of  recorded  deeds  were  242. 
There  are  now  2,227.  The  volumes  of  recorded  mortgages  were  132. 
There  are  now  2,425.     The  volumes  of  recorded  deeds  in  the  Brooklyn 


230  HISTORY    OF   THE   BENCH   AND   BAR   OF   NEW  YORK 

register  s  office  were  then  25.  There  are  now  1,887.  The  volumes  of 
recorded  mortgages  were  then  18.  There  are  now  2,099.  In  the 
surrogate's  office  in  this  city  there  were  of  recorded  wills  64  volumes. 
There  are  now  415.  In  the  surrogate's  office  in  Brooklyn  (Kings 
county)  there  were  but  3  volumes  of  wills.     There  are  now  1 40. 

As  showing  the  small  amount  of  business  at  that  time  in  the  sur- 
rogate's office  in  Kings  county,  I  may  mention  that  the  surrogate  (the 
Honorable  Jeremiah  Lott)  held  his  court  on  Tuesdays,  from  9  to  10 
A.M.,  at  his  dwelling-house  in  Flatbush,  where,  in  his  desk,  were  con- 
tained all  the  records  of  his  office.  He  had  no  clerk,  but  wrote  with 
his  own  hand  all  the  entries  and  papers,  and  the  copies  of  all  docu- 
mentary instruments  and  proceedings.  He  at  the  same  time  conducted 
his  large  rich  farms,  and  also  his  business  as  surveyor.  His  Honor, 
Judge  Abbott,  in  administering  the  same  office  in  his  marble  hall  in 
Brooklyn,  with  the  aid  of  his  experienced  and  able  adjutant,  Mr. 
Voorhees,  and  of  his  many  skilled  and  busy  clerks,  now  finds  little 
time  for  his  farm  on  Shelter  Island,  and  can  "  survey  "  only  his  official 
field. 

In  1829  the  whole  judicial  force  of  the  state  was  but  a  "  corporal's 
guard  "  compared  with  that  of  to-day.  The  Supreme  Court  consisted 
of  but  three  judges,  John  Savage  being  the  chief-justice,  and  Jacob 
Sutherland  and  William  L.  Marcy  the  associate-justices.  They  held 
but  four  general  terms  annually,  viz.,  at  Albany  in  January  and  October, 
in  this  city  in  May,  and  at  Utica  in  July. 

The  special  terms  were  held  not  here  but  at  Albany,  on  two  days 
in  each  of  seven  months  during  the  year.  Mr.  Field,  Judge  Gilbert, 
and  Mr.  Man,  who  are  here  to-night,  and  who,  though  still  young, 
were  in  practice  before  the  days  of  railroads,  have  no  doubt  shivering 
recollections  of  our  stage  coach  and  stage-sleigh  day-and-night  winter 
journeys  thither  over  the  Highlands  and  through  the  snow-drifts, 
and  often  on  the  upper  part  of  the  river  itself,  when  the  ice  was  thick 
enough  to  bear  the  weight — and  with  an  occasional  capsize.  The  stage 
drivers  were  not  all  members  of  the  temperance  society.  A  route  often 
taken,  when  the  East  River  was  not  clogged  by  ice,  was  by  water  to 
New  Haven  and  thence  overland  by  stage  or  private  conveyance  to 
Albany. 

I  have  a  vivid  memory  of  the  arctic  coldness  on  the  night  of  the 
great  fire  of  December,  1835  (which  destroyed  most  of  this  city  below 
Wall  street),  colder,  it  was  said,  than  had  been  known  in  fifty  years. 
My  companions  in  the  sleigli,  on  the  following  night,  on  our  long 
return  journey  from  Albany  (after  our  work  was  done  at  the  special 
term),  were  Theodore  Eames,  an  amiable  and  upright  man  and  good 
lawyer;  Gabriel  Furman,  an  antiquarian  scliolar,  and  afterward  a  mem- 
ber of  the  senate  and  Court  of  Errors ;  Henry  C.  Murphy,  conspicu- 
ous as  a  lawyer,  a  member  of  the  state  senate  and  of  congress,  and 
minister  of  the  United  States  at  the  Hague  ;  the  noble  Robert  Emmet, 


)K    llli:    MKNCII    AM»    HAi:    <»l'    m:\\     V<ti;K 


2:n 


aftiTWiud    :i    Jiid.iiv    of    tlic    SuiH'iior  ('..nil  ;    :m<l    Williiini    K.-nl     .-ill 
l()n<;  since  dciul. 

Sanmcl  Stevens,  Azor  Tabcr,  Marcus  'I'.  Reynolds,  .lames  Mduards, 
and  others  of  the  Albany  bi-ethren,  were  c()nsi<i^nees  of  motions  there, 
bnt  it  was  very  often  nec(>ssary  for  New  York  counsid  to  attend  in 
person,  instt^ad  of  (hde<;atin^  their  cases  to  otliers.  Those  motion  days 
\vt>n\  however,  like  the  <;eneral  terms,  welcome  and  pleasant,  for  they 
brought  toiit'ther  leadin<;  members  of  the  bar  from  other  counties, 
and  thus  friendly  acquaintance  and  cherished  relations  arose  between 
prominent  lawyers  from  all  ]>arts  of  the  state.  Delightful  memories 
remain  of  the  rendezvous  on  those  occasions  of  clever  men,  of  learned 
men,  of  wits,  and  of  frientls,  at  the  capitol,  at  Congress  Hall,  and  at 
Cruttenden's. 


BOWEKY   THEATRE,   1826. 


There  were  eight  circuit  judges,  one  for  each  of  the  eight  circuits 
(corresponding  with  the  senate  districts)  into  which  the  state  was 
divided.  This  circuit  consisted  of  New  York,  Richmond,  Kings, 
Queens,  and  Suffolk  counties.  Tlius  one  circuit  judge  then  sufficed 
for  this  city  and  for  the  other  four  counties.  He  also  performed  the 
duties  of  vice-chancellor.  That  the  pressure  of  business  in  Kings 
county  was  not  overwhelming  in  1829  may  be  inferred  from  the  fact 
that,  although  Judge  Edwards  held  three  circuits  there,  but  two  causes 
were  tried  during  the  year.  The  number  tried  and  disposed  of  at 
circuit  there  last  year  was  660,  and  the  number  on  the  calendar  1,350, 

At  that  early  day  there  was  some  ceremony  in  opening  the  Kings 
county  circuit,  which  was  held  at  Flatbush,  the  court-house  and  jail 
being  in  one  building.  All  in  attendance  assembled  at  the  tavern — 
the  ancient  sign  in  front  of  which  still  bore  the  ante-revolutionary 
device  of  the  Lion  and  the  Unicorn  lighting  for  the  crown— and,  on  the 


232 


HISTORY  OF  THE  BENCH  AND  BAR  OF  NEW  YORK 


tolling  of  the  bell,  moved  in  solemn  and  grand  procession  to  the  conrt- 
liouse,  the  sheriff  with  stately  pace  leading  the  column,  and  followed 
by  the  judge,  at  whose  side  marched  the  county  clerk,  then  came  the 
bar,  then  the  grand  jurors,  and  then  the  petit  jurors  and  others. 

Cupidity  was  certainly  not  an  impulse  to  ambition  for  judicial 
station.  The  salaries  of  each  of  the  three  justices  of  the  Supreme 
Court  and  of  the  chancellor  were  $2,000.  After  serving  many  years, 
Chief-Justice  Savage  found  this  compensation  so  inadequate  that  in 
1836  he  resigned  his  seat  on  the  bench  to  be  axipointed  by  his  asso- 
ciates as  clerk  of  the  court  at  Utica  ;  and,  for  the  like  reason,  Judge 
Sutherland  in  1835  resigned,  and  was  appointed  clerk  of  the  same 
court  at  Geneva. 

The  salary  of  each  of  the  circuit  judges  was  $1,250.  They  were 
also  entitled  to  certain  fees  for  particular  services,  such  {inter  alia)  as 

for  signing  a  judgment,  12h 
cents,  and  taxing  costs,  50 
cents.  My  old  cost  books  con- 
tain the  signatures  of  great 
and  most  honored  judges'  tax- 
ing bills,  including  such  items 
for  themselves.  One  shudders 
at  the  thought  of  what  would 
be  the  fate  of  an  old  lawyer,  of 
the  earlier  dispensation,  who 
should  return  to  practice  ana, 
unaware  of  the  changes  that 
have  intervened,  should  ap- 
proach one  of  the  honored 
judges  now  present,  and  offer  him  12J  cents  to  sign  a  judgment ;  or  a 
dollar  for  an  order.  The  amazed  attorney  would  soon  be  introduced  to 
what  he  had  before  knowTi  only  by  reputation,  the  Tombs,  or  Ludlow 
street  jail. 

A  special  bounty  of  $1.50  was  given  to  the  judge  of  this  circuit 
for  each  cause  noticed  for  trial  in  the  city  of  New  York,  but,  in  the 
cautious  and  rigid  words  of  the  statute,  "  not  more  than  once  in  any 
one  cause." 

In  those  days  of  stinted  daily  bread  for  high  judicial  officers,  no 
objection,  so  far  as  I  can  recollect,  was  suggested  when  a  judge  sought 
to  provide,  if  not  for  "  his  household,"  for  his  kindred,  by  some  of  the 
merely  ministerial  patronage  within  his  gift.  Thus  Chancellor  Kent, 
than  whom  the  whitest  snow  was  not  more  pure,  appointed  his  bi'other, 
Mr.  Moss  Kent,  as  register  of  the  Court  of  Chancery.  Chancellor 
Walworth  made  his  two  brothers,  John  and  Hiram,  successively  assist- 
ant register  of  the  same  court  in  this  city.  Chief-Justice  Jones  made 
his  relative,  Mr.  Charles  A.  Clinton,  clerk  of  the  Superior  Court.  On 
Mr.  Clinton's  death  or  resignation,  Judge  Oakley's  brother  was  placed 


mmnh 


WASHINGTON  HAIL,  BROADWAY. 


lllSTOltY    OK   TIIK    IIKNCII     AM)    HA  II    OK    N  K\V    VoltK  L'.13 

in  (lie  .s:iiM(>  odicc'.  .liid-ic  Nt'lson,  of  tlir  Siiitrcmc  Coiirl  of  (lie  liiilrd 
Sliitt's,  iippoiiilt'd  his  son  aiul  jil'tciunrd  Ins  soii-iii  l;i\v  its  clciks  of  I  lie 
rnitcd  Slid«'s  Coiirls  in  this  city,  :iiid  .Iiid';*'  Belts,  of  lln"  lint.-d 
States  Disti'ictCoiirt,  appoiided  siiccessivcdy  ins  biot  in-r  and  his  son  as 
ch'rks  of  that  conrt. 

I  wouhl  not  advert  to  these  historic  facts  if  they  implied  a  shadow 
of  fault  in  either  of  the  judges,  or  in  those  whom  they  thus  appointed. 

lint  sixty  years  ago  the  judicial  force  was  even  then  inadeciuate, 
and,  in  18:28,  the  Superior  Court  in  this  city  was  established.  Its  higli 
character  was  iixed  at  the  outset.  Three  great  lawj^ers,  each  then  at 
tile  zenith  of  his  fame,  were  placed  on  its  bench,  Samuel  Jones,  the 
very  able  and  dec^ply  learned,  ex-chancellor;  Josiah  Ogden  HofTman, 
than  whom,  in  his  time,  there  was  no  higher  authority  on  commercial 
law  ;  and  Thomas  J.  Oakley,  a  great  nisi prius  lawyer  and  judge  inde- 
pendent of  the  books.  He  was  withal  an  insatiate  novel  reader.  Ilis 
charge  to  the  jury  was  always  the  sun  dispelling  all  clouds.  They  and 
their  successors  have  by  their  decisions  largely  fixed  commercial  law 
with  almost  the  force  of  statutory  legislation. 

The  Court  of  Common  Pleas  was  a  favorite  tribunal  with  the  bar. 
The  Honorable  John  T.  Irving  (brother  of  Washington  Irving)  and 
Honorable  Michael  UlshoefTer  were  its  judges. 

In  1831  the  Vice-Chancellor's  Court  in  this  city  was  established, 
and  an  excellent  lawyer  and  excellent  man,  the  Honorable  William  T. 
McCoun,  was  placed  on  its  bench,  and  in  1839  an  assistant  vice- 
chancellor,  the  learned  and  genial  Murray  Hoffman,  was  appointed. 

In  Brooklyn  the  City  Court  was  created  in  1849,  and  the  able 
judges  of  that  court  and  of  the  County  Court  have  efficiently  co- 
operated with  their  brethren  of  the  Supreme  Court  in  disposing  of  the 
great  number  of  cases  arising  in  that  district. 

During  the  cycle  of  sixty  years  of  which  I  have  spoken,  very  great 
changes  have  been  made  in  the  law-  itself,  adapting  it  not  only  with 
common  law  plasticity,  but  by  bold  yet  cautious  statutory  surgery  to 
the  altered  conditions  of  society. 

With  your  leave,  gentlemen,  I  will  allude  to  a  few  of  these  changes, 
as  most  of  them  were  before  your  time,  though  you  are  familiar  with 
their  history. 

First  and  foremost,  in  1829,  the  first  volume  of  the  revised  statutes 
made  its  aj^pearance,  and  soon  after  the  residue  of  that  great  revolu- 
tionar}'  work  took  place.  The  changes  made  by  it  were  far  reaching, 
and  radically  altered  a  large  portion  of  the  previous  law,  especially  that 
relating  to  uses  and  trusts  and  powers.  It  substituted  a  simple  and 
precise  code  as  to  the  creation  and  alienation  of  estates,  and  simplified 
and  reduced  to  more  of  certainty  the  practice  of  the  courts. 

Most  of  the  old  lawyers  received  it  not  only  Avith  the  '"cold 
shoulder,"  but  many  of  them  with  maledictions,  and  when  thereafter, 
as  sometimes  happened  in  the  course  of  business,  their  opinions  or 


234  HISTORY    OF   the   bench   and   bar   of   new   YORK 

actions  were  faulty  because  not  in  accordance  with  provisions  of  that 
work,  the  fault  was  indignantly  ascribed  to  the  statute  and  not  to  the 
lawyer,  and  he  felt  relieved  from  any  imputation  of  fault  if  he  could 
show  himself  in  accordance  with  the  previous  law,  and  how  wrong 
therefore  the  new  statute  was. 

Experience  and  the  reports  have  made  us  all  acquainted  vdth  the 
many  questions  that  have  arisen,  but  are  now  no  longer  open,  under 
that  great  code,  which  has  relieved  us  from  much  law  and  many  rules 
based  on  other  and  early  conditions  of  the  world  no  longer  existing — 
rules  and  law  which  had  outlived  the  reasons  of  their  creation,  and 
which  had  become  instruments  of  frequent  embarrassment  and  wrong. 

We  of  the  profession  are  enriched  by  the  admirable  address  on  the 
subject  of  "  The  Revision  and  the  Revisers,"  delivered  before  the  Asso- 
ciation of  the  Bar  in  January  last  by  our  well-beloved  brother,  William 
Allen  Butler.  It  is  a  lucid  and  instructive  history  of  "■  the  earliest  re- 
corded effort  at  a  written  system  of  governmental  statute  law  for  an 
English-speaking  people,"  and  a  most  interesting  memorial  of  the  emi- 
nent lawyers  who  constructed  the  great  work. 

Another  change,  and  which  was  at  the  time  deemed  by  very  many 
to  be  almost  agrarian,  was  the  abolition  of  imprisonment  for  debt  (in 
1831).  Against  the  measure  it  was  urged  that  Fi  Fas  were  almost 
always  returned  nulla  bona,  while  on  Ca  Sas  very  large  amounts  were 
promptly  paid.  Cases  of  actual  oppression  under  the  law  were  rare, 
because  honest  debtors  seldom  failed  to  obtain  bail  for  the  limits,  and 
absolute  discharges  of  such  debtors  under  the  insolvent  laws  were 
readily  obtained.  But  imprisonment  for  debt  of  any  but  dishonest 
debtors  was  abolished,  and  no  sane  person  nowadays  would  think  of 
reinstating  it.  By  parallel  provision  of  law,  household  furniture  is  no 
longer  liable  to  distraint  for  rent ;  and  the  enlightened  philanthropy 
of  Hamilton  Fish  secured,  while  he  was  governor  of  the  state,  im- 
munity of  every  homestead  (not  exceeding  a  specified  value),  from  sale 
on  execution. 

Still  another  change  (in  1847)  subversive  of  a  settled  rule,  I  might 
almost  say  principle,  of  law  was  that  of  allowing  parties  to  suits,  and 
other  interested  witnesses,  to  testify  on  trial  of  causes.  This  innova- 
tion was  regarded  with  great  disfavor  by  conservative  men,  but  though 
under  the  law  as  it  now  stands  cases  doubtless  occur  in  which  inter- 
ested false  witnesses  thwart  Justice,  yet  the  great  pervading  and  de- 
tecting power  of  truth — magna  est  et  prevalehit — generally  discovers 
and  defeats  the  falsehood.  I  think  that  the  exjierience  and  Judgment 
of  the  courts  and  the  profession  on  the  whole  sustain  the  change,  and 
would  be  adverse  to  a  reinstatement  of  the  rule  that  interest  should 
exclude  the  witness. 

Whether  the  laws  of  1848-49,  changing  the  property  relations  and 
powers  of  husbands  and  wives,  and  the  severance  of  interests  which 
those  laws  have  effected,  are  an  unmixed  good,  may  be  questioned. 


IllsroKY    OK    IIIK    HKN(;iI    AND    ISAIt   OF    NKVV    VOUK 


235 


1  will  ()iil\  alliul.'  fiirtlirr 
to  tli(>  <>^('iitM:il  laws  imdcr 
which  corporations  may  l)c 
now  created  almost  without 
limit.  All  early  exainple 
was  that  of  tlu^  <:;eneral 
bankin<;  act  in  \S'AS,  al't(>r- 
wards  adopted  in  substance 
by  congress  as  the  model  of 
the  national  banking  law. 
As  more  than  one  corpora- 
tion could  not  then  be  cre- 
ated by  one  act,  this  was  so 
framed  as  to  avoid  the  pro- 
liibition,  and  the  Court  of 
Errors  decided  that,  though 
an  association  formed  under 
it  was  in  fact  a  corporaticm, 
yet  it  was  not  such  a  cor- 
poration as  the  constitution 
of  1821  prohibited. 

The  constitution  of  1821, 
under  which  the  general 
banking  act  of  1838  was 
formed,  forbade  that  any 
corporation  should  be  creat- 
ed save  by  a  special  act, 
while,  on  the  other  hand, 
the  constitution  of  1846  pro- 
hibited special  charters  ex- 
cept for  municipal  purposes, 
and  authorized  general  laws 
under  which  mankind  at 
large  in  this  state  can  now 
become  corporations  for 
almost  any  conceivable  busi- 
ness. To  railroad  corpora- 
tions thus  authorized  is  del- 
egated (perhaps  necessarily) 
the  extreme  right  of  eminent 
domain,  the  exercise  of 
which  by  banded  specula- 
tors is  full  of  peril,  and  often 
of  oppression,  to  owners  of 
real  yiroperty. 

The  abolition  of  the  Court 


236  HISTORY    OF  THE  BENCH   AND   BAR  OF  NEW  YORK 

of  Chancery  as  a  distinct  tribunal  in  1847,  and  the  vesting  its  powers 
in  the  Supreme  Court,  was  another  striking  act.  The  people  of  the 
state  had  always  revered  it.  Chancellor  Kent  had  shed  lustre  on  it, 
and  his  successors,  especially  Walworth,  the  last  of  the  chancellors, 
had  maintained  its  high  rejjute.  Chancery  practice  was  not  generally 
understood  in  1829,  and  was  conducted  by  a  small  portion  of  the  bar. 

But  equity  law  is  now  administered  by  the  courts  as  effectively — 
possibly  not  as  learnedly — as  before,  and  in  this  state  and  in  England 
(following  oar  example)  a  separate  court  of  chancery  no  longer  exists. 

By  the  provisions  of  the  constitution  of  1846  the  time-honored  Court 
for  the  Trial  of  Impeachments  and  the  Correction  of  Errors  ceased  to  be, 
and  in  its  stead  was  established  our  present  final  tribunal,  the  Court  of 
Appeals.  The  former  seemed  ill-constituted,  as  it  consisted  of  thirty- 
three  presumably  lay  members  (the  lieutenant-governor  and  the  sen- 
ators), while  there  were  but  four  law  judges  (the  chancellor  and  the 
three  judges  of  the  Sujireme  Court).  The  chancellor  did  not  sit  on  the 
hearing  of  appeals  from  his  decisions,  nor  did  the  judges  of  the  Supreme 
Court  at  the  hearing  on  writs  of  error  from  theirs.  Yet  the  decisions  of 
the  Court  of  Errors  ranked  very  high  in  the  jurisprudence  of  the  country. 
It  always  happened  that  some  of  the  senators  were  able  lawyers, 
and  most  of  the  others  were  practical  men  of  business  experience 
and  sound  judgment,  and  their  strong  good  sense,  blending  with  the 
learned  wisdom  of  the  judges,  mitigated  merely  technical  or  over-rigid 
rules  of  law  where  they  conflicted  with  substantial  justice,  and  resulted 
in  rational  decisions  on  reasonable,  instead  of  harsh,  application  of  those 
rules.  As  "  mind  governs  matter,"  it  followed  that  such  of  the  other 
lay  members  of  the  court  as  had  no  knowledge  and  little  judgment 
"  concurred  "  in  what  their  wiser  brethren  did,  and  became  x>ractically 
as  harmless  as  those  worthy  rural  dignitaries  whom  we  have  all  seen 
sitting  solemn  and  silent  on  the  bench  by  the  side  of  the  circuit  judge. 

I  believe  that,  by  the  general  voice  of  the  bar,  the  Court  of  Errors 
was  one  of  the  very  strongest  judicial  tribunals  in  this  country. 

To  it  has  succeeded  a  court  of  grand  ability.  Like  its  pi-edecessor 
it  passes  on  questions  of  more  importance,  both  as  regards  the  amounts 
and  the  principles  involved,  than  any  other.  Its  decisions  are  veiy  gen- 
erally adopted  and  applied  in  other  states,  and  become  in  effect  the  law 
of  the  land.  The  decisions  of  the  Supreme  Court  of  the  United  States 
are,  of  course,  paramount  on  questions  within  its  exclusive  jurisdiction, 
but  on  those  relating  to  commerce,  of  which  this  city  is  the  great  foun- 
tain and  centre,  our  Court  of  A])peals  is  practically  the  law-giver. 

The  constitution  of  1846  provided  for  an  elective  judiciary.  Great 
was  the  anxiety  as  to  the  experiment.  General  has  been  the  satisfac- 
tion as  to  the  results. 

The  change  created  by  the  code  of  pi'ocedure  of  1848,  of  wliich  our 
learned  brother,  David  D.  Field,  was  the  chief  author,  abolishing  forms 
of  action  and  assimilating  the  practice  to  former  chancery  i)ractice,  was 


isroiiv  OK   riiK  iii:.N(ii   ani»  mm: 


m:\v  voiik 


2:{7 


iii(l(>('(l  :i  r<'v<»lu(i()n,  ;iii(l  none  would  cmi'  now  to  return  to  the  Ht:it(i 
which  preceih'd  it.  Its  wisdom  i\nd  its  ehiciency  are  attested  by  its 
•i-eneral  adoption  in  twenty-seven  states  and  teri'itories,  and  its])rineii)le 
in  I^n^Iand  and  Iichmd,  and  in  many  of  the  English  colonies.  When 
l)r()posed  it  mt't  with  tlu^  liU(^  opposition  to  that  which  the  revised 
statut(>s  encountered,  and  with  the  like  ultimate  ac(iuiescenc(!. 

Wlio  now  would  consent  to  restore^  the  ancient  technicalities  that 
encumbered  the  i)ractice  and  I'rom  which  the  code  was  an  act  of  enian- 
cipatit)n^ 

It  ii.ib  ielie\ed  Piofessor  Dwight's  acconi])lisljed  <j;i.uluates,  and 

^  ^ othei*?  ^\ho  have  been  admitted  to  ])rac- 

tice  \Mtliin  the  last   f()it\    >ears,   from 
/      '  \^      encounteiing  the  study  ol,   and   being 

is^^\   examined   about    i)l.unts,   capiases    ad 
respoiuhnduin,    alias     and 
^    ^  ^  ^-2p^-^^=s>^    pluries  writs,  pledges 


to  prosecute,  warrants  of  attorney,  assump- 
sit, debt,  trover,  replevin,  cepit^  detinet,  tres- 
pass, trespass  on  the  case,  acetiam  clauses, 
scire  facias,  rebutters,  surrebutters,  sur-sur 
rebutters,  dilatory  pleas  and  pleas  in  avoid- 
ance, 7iil  dicifs,  imparlances,  circuit  rolls  and 

entries,  writs  of  Jieri  facias,  capiases  ad  satisfaciendum,  and  a  heap 
of  other  technical  literature  (now  lying  in  the  chaos  in  which  I  have 
named  it),  and  which  has  ceased  to  "tangle  justice  in  a  net  of  forms." 

Speaking  of  pleading  recalls  one  in  actions  against  counsellors  of 
the  court.  The  defendant  was  always  described  in  the  declaration  as 
"  A.  B.,  gentleman,  one  of  the  counsellors  of  this  honorable  court,"  and 
when  he  was  again  (as  he  was  often)  furtlier  alluded  to  in  the  declara- 
tion, he  was  described  as  "  the  said  A.  B.,  gentleman,  one,"  etc.  I  well 
remember  that  often  when  old  lawyers  met  it  was  their  habit  to  salute 
one  another,  not  as  we  do  now  with  ''  Good  morning,  counsellor,"  but 
"  Good  morning,  gentleman,  one,"  etc. 

To  cite  all  the  changes  which  have  been  made  since  1829  woidd,  of 


238  HISTORY   OF   THE   BENCH   AiSTD   BAR   OF  NEW   YORK 

course,  be  impracticable,  even  were  it  desirable  at  this  time.  Those 
mentioned  were  in  accordance  with  the  altered  condition  of  human 
affairs.  They  were  not  effected  by  revolution  or  state  craft,  but  by 
the  wisdom  of  the  people  of  the  state,  and  are  an  added  proof  of  the 
adequacy  of  popular  government. 

I  have  referred  only  to  statutory  changes  of  the  law,  and  not  to 
those  modifications  which  have  resulted  in  sixty  years  from  cases  dis- 
tinguished, doubted,  or  overruled  ;  or  to  the  new  law  resulting  from  the 
use  of  steam  and  electricity  as  agents  in  the  affairs  of  mankind. 

Though  our  profession  are,  as  a  class,  laudatores  temporls  acti,  yet 
with  all  their  regard  for  precedents  they  have  ever  been  prompt  and 
zealous  in  promoting  needed  reforms.  In  all  of  that  character  which  I 
have  named  they  have  been  pioneers  and  advocates,  and  they  have 
rejected  and  defeated  much  that  was  perilous. 

To  return  to  the  period  of  1829  (if  you  are  not  too  weary  of  that 
date),  I  would  add  that  the  summits  of  the  profession  were  then  attained 
mostly  by  those  who  added  eloquence  to  learning  and  logic,  and  it  was 
eloquence  of  indeed  a  high  order  when  John  Wells  and  Thomas  Addis 
Emmett  and  their  peers  were  the  orators.  Not  only  clients  and  jurors 
and  the  people  hungered  and  thirsted  for  it,  but  the  judges  themselves 
coveted  it,  and  promoted  it  by  sessions  of  indefinite  length.  There 
were  fewer  objects  of  public  attraction  then  than  now.  The  courts  were 
resorts  of  popular  interest,  and  when  a  great  case  was  to  be  tried  or 
argued  by  great  lawyers  the  court-room  would  be  thronged  by  eager 
listeners,  laymen  as  well  as  the  bar.  Mr.  Wells,  who  died  just  before 
that  X)eriod  (in  1823),  was  reputed  at  once  as  the  most  learned  lawyer, 
thorough  classical  scholar,  and  brilliant  orator  at  the  bar,  and  his  fame 
lingered  long  in  the  profession.  Mr.  Emmett's  reputation  was  hardly 
less  distinguished. 

Lawyers  had  time  then  to  acquire  and  cultivate  such  graces  and 
accomplishments  ;  courts  and  juries  and  audiences  had  time  to  listen 
to  and  delight  in  them,  but  as  business  increased  and  time  became  more 
precious  eloquence  diminished,  and  nowadays  is  rarely  heard  in  court. 
It  is  seldom  attempted  and  is  not  expected.  It  is  out  of  date.  With 
crowded  calendars  there  is  so  little  time  to  listen  to  it  that  it  would 
now  be  almost  as  much  out  of  place  in  court  as  in  the  board  of 
brokers.  Our  judges  would  make  short  work  with  Demosthenes  and 
Cicero.  With  a  rap  on  the  desk,  the  judge  would  tell  either  of  them 
to  confine  himself  to  the  case,  and  remind  him  that  his  time  was 
limited  to  an  hour. 

But  although  the  poetry  of  the  bar  is  thus  abated,  its  prose  was 
never  more  vigorous,  substantial  and  powerful.  It  never  more  abounded 
in  thorough  lawyers,  close  reasoners  and  effective  advocates.  In  making 
this  allegation  my  pi-oofs  are  present  here  to-night.  C  ir  cum  spice  ! 
It  is  certain  that  our  predecessors  had  few,  if  any,  cases  involving  such 
grave  questions  and  vast  amounts  as  those  which  are  now  of  almost 


IIISTOUV    <»K    IIIK    HKNCII    AND    UAK    OK    NKW    YOKK 


2:w 


everyday  (H'cun-cnco,  :ui(l  wliicli  aicM'oiuliieted  by  eoniiHel  wltli  eon 
sunuiiate  skill  and  strength.  Ineuleiit  to  this  increase  of  burden  is  a 
proportionate  increase  of  \\\e  (jii Uklain  }ionorarinm\\\\\v\\  even  lawyers 
occasionally  consent  to  receive.  Bretliren  of  tliis  generation,  you  are 
in  very  "gre«Mi  pastures,"  altliongh  you  are  not  by  "still  waters." 

It  was  easier  to  become  a  tliorougldy  learned  lawyta-  in  those  earlier 
days  than  it  is  now.  There  was  then  less  of  law  to  be  learned,  and 
there  was  more  of  time  in  which  to  learn  it.  The  world  was  not  in 
such  a  hurry  then.  Kent  and  Hamilton  and  Spencer  and  Burr  and 
llaiison  and  Wells  and  Emmett  and  llolTnuin  and  Jones  and  their 
cotemporaries  had  few  books  to  study.  Their  libraries  could  almost 
stand  an  their  mantels.  They  drew  their  knowledge  from  Plowden 
Coke,  Lyttleton,  the  Year  Books,  Grotius,  Putfendorf,  Vattel,  Emeri- 
gon,  as  well  as  Blackstone,  the  fountains  of  the  law.  Men  of  this  gen- 
eration must  draw  theirs 
from  the  torrents  and 
the  floods  as  well.  The 
men  of  the  earlier  date 
were  not  drowned  in,  or 
swept  away,  as  we  are 
liable  to  be  in  this  by 
the  great  deluge  of  re- 
ports and  treatises. 
When  Chancellor  Kent 
was  admitted  to  the  bar 
in  1785  there  was  not  a 
solitary  volume  of  re- 
ports of   any  court   in 


Four  LEE  FIFTY   YKAUS 


this  country.     The  first, 

I  believe,  was  that  of  Kirby  (Connecticut)  in  1789,  and  the  first  of  any 
court  in  this  state  was  in  1794,  when  Coleman's  and  Caine's  Cases  ap- 
peared. Now  there  are  of  reports  of  the  courts  of  this  state  alone  no 
less  than  656  volumes.  When  we  add  to  these  the  unceasing  cataracts 
— the  "  blizzards  " — of  reports  from  the  other  states,  the  United  States, 
and  from  England,  we  realize  that  the  profession  of  law  to-day  is,  in 
very  truth,  experimentum  difficile  and  very  different  from  the  holiday 
journey  and  calling  of  our  classic  predecessors. 

As  I  remember  the  ancient  New  York  lawyers  of  whom  I  have 
spoken,  there  was  much  more  of  stateliness,  reserve,  and  formality  than 
prevail  at  this  day  ;  but  I  think  the  experience  of  the  older  members 
of  the  bar  who  are  here  to-niglit  will  sustain  me  in  saying  that  the  i)er- 
sonal  relations  between  the  gentlemen  of  the  profession,  and  between 
them  and  the  bench,  have  not  been  at  any  time  more  courteous  and 
congenial  than  now.  Sixty  years  ago  there  was  in  the  bearing  of  law- 
yers toward  one  another,  perhaps  somewhat  more  than  at  this  time,  of 
the  punctilio  generally  imputed  to  the  days  of  duelling.     Two  at  least 


240 


HISTOKY  OF  THE  BENCH  AND  BAK  OF  NEW  YORK 


p"-i 


of  the  learned  judges  in  this  city,  then  on  the  bench,  had  been  wounded 
in  duels.  Three  other  members  of  the  bar  occur  to  me  at  the  moment 
who  had  been  so  unfortunate  as  to  kill  their  adversaries,  and  others 
had  been  engaged  in  such  affairs.  But  compulsion  is  not  now,  if  it 
ever  was,  essential  to  courtesy.  The  amenities  of  life  result  from  indi- 
vidual and  social  re- 
finement, and  the  ex- 
action of  public  senti- 
ment. Now,  too,  the 
libraries,  the  Bar  Asso- 
ciation, and  clubs  bring 
the  profession  into 
closer  intercourse  and 
relations,  and  convert 
into  companions  and 
friends  intellectual  and 
cultivated  men,  who 
would  else  rarely  meet 
except  on  occasions  of 
business,  and  who 
would  exercise  no  com- 
bined influence,  as  they 
now  do,  on  public  opin- 
ion and  interests.  Such 
intercourse  abates  the 
asperity  of  even  political 
differences,  and  leads  to 
respect  and  good  will 
between  men  who  in 
public  affairs  have  a 
common  aim,  though 
'^^l|i^  they  may  not  be  in  ac- 
cord as  to  the  best  mode 
of  attaining  it  In  that 
spirit  we  all  cordially 
welcome  the  return  of 
the  very  distinguished 
statesman'  who,  resum- 
ing his  place  in  the  pro- 
Our  sincere  good  wishes  are 


'.i•^ 


^m- 


^S^u 


\;<^'''''^ 


OBELISK,  CENTKAL   TAUK 


fession,  will  make  New  York  his  home 
for  his  continued  prosperity  and  happiness. 

Gentlemen,  when  I  learned  that  I  should  have  the  honor  of  ad- 
dressing you  this  evening,  my  impulse  was  to  sketch  the  characters  of 
some  of  our  eminent  bretliren  who  have  passed  away.  But  were  I  to 
do  so,  where  should  I  begin,  and  where  should  I  stop  ? 

*  President  ricveland 


IIIS'IOIIV    OK    'IIIK    HKXCII     AM)    I!AU    OF    N'KW    YOltK  241 

It  is  ii  siul  li-iitli  tliMt  llic  fniiic,  and  even  lh«>  memory,  of  the  most 
illustrious  of  our  jtrofcssion  aiv  almost  as  brief  as  their  lives.  I'liless 
coupled  with  judicial  or  hi^h  ])()litical  ])osition  they  vanish  from  mem- 
oiT  when  they  vanish  from  the  sta^e.  The  very  names  of  a  lar^^e  por- 
tion of  the  pronunent  lawyers  of  my  earlier  day  ai-e,  as  I  hav*;  said, 
uidviiown  to  most  of  the  younger  gentlemen  now  present.  The  jud^e 
is  presiMved  in  the  n^ports  which  bear  the  record  of  his  learninf?  and 
his  wisdom,  and  the  achievements  of  the  statesmen  are  insciibed  in  his- 
tory; but  thouij:h  Alexander  Hamilton  and  Edward  Liviuii'ston  and 
.lames  Kent  and  Ambrose  Spencer  and  Josiah  On^den  Ilolfman  and 
Samuel  Jones  were  lawyers  of  consummate  ability  and  distinction  in 
their  day,  their  fame  would  have  ceased  ere  this  but  for  their  careers 
on  the  bench,  or  their  action  in  the  government  of  tlie  country,  save 
Chancellor  Kent,  who  would  live  in  his  invaluable  Commentaries. 

In  my  sjian  at  the  bar  what  a  host  of  noble  men  liave  gone  from  it 
in  close  ])rocession  to  the  grave  ! 

Would  that  the  time  permitted  me  even  to  recite  their  names ; 
would  that  it  permitted  me  to  give  adequate  sketches  of  Abraham  A^'an 
Yechten,  of  Albany,  the  patriarch  of  the  bar,  whose  unbounded  knowl- 
edge of  the  law  and  exalted  character  and  powerful  reasoning  made 
him  honored  of  all  men ;  the  grand  and  genial  David  B.  Ogden,  of 
whom  Chief-Justice  Marshall  said  that  "  when  he  had  stated  his  case, 
it  was  already  well  argued";  Peter  A.  Jay,  the  scholarly,  refined,  and 
profound  lawyer ;  William  Slosson  and  Thomas  Ludlow  Ogden  and 
George  AV.  Strong  and  Jonathan  Miller,  on  each  of  whom  clients  safely 
relied  in  all  matters  affecting  their  estates  and  last  wills  and  testaments; 
the  very  lofty,  learned,  and  accomplished  John  Duer,  to  whom,  with  his 
pure,  wise,  and  learned  associate  Benjamin  F.  Butler,  and  the  clear  and 
strong  John  C.  Sjiencer,  we  owe  the  revised  statutes  ;  the  right-minded 
and  clear-headed  Daniel  Lord,  for  many  years  the  leading  commercial 
lawyer  in  this  city,  who,  when  the  facts  Avere  stated,  so  immediately  saw 
the  whole  case  and  what  he  termed  '"the  morality"  of  it,  and  the  law 
governing  it,  that  his  first  argument  of  it  in  the  court  below  was  hardly 
surpassed  by  his  final  argument  of  it  in  the  Court  of  Errors  or  Appeals, 
he  had  quick  perception  of  character ;  I  recollect  his  speaking  to  me 
of  a  youth  then  studying  law,  whom  he  had  lately  met,  and  who,  he  said, 
would  surely  become  very  distinguished  (I  would  mention  the  name  of 
that  youth  but  for  the  presence  of  Mr.  Choate) ;  the  fascinating  Ogden 
Hoffman,  the  Erskine  of  our  bar,  who  left  the  navy  for  the  law,  at  which, 
like  his  father,  he  became  powerful  and  eminent,  and  captivated  all  by 
his  wit  and  his  wonderful  eloquence;  his  voice  was  music  from  the 
note  of  a  lute  to  the  blast  of  a  bugle  ;  William  Kent,  whom  everybody 
loved  and  admired  ;  like  his  father,  he  read  everything  and  forgot 
nothing ;  whenever  he  was  seen  in  court,  all  waited  to  hear  him,  for 
even  on  a  common  motion  he  could  not  avoid  charming  his  hearers 
alike  by  his  polished  wit,  his  sound  law,  and  his  beautiful  diction ; 


242 


HISTORY  OF  THE  BENCH  AND  BAR  OF  NEW  YORK 


Marshall  S.  Bidwell,  than  whom  no  better  man  or  lawj^er  lived  ;  Pres- 
cott  Hall,  William  C.  Noyes,  Edward  Sanford,  Nicholas  Hill,  and  Fran- 
cis Cutting,  each  a  gentleman  respected  and  loved  by  his  peers,  each 
master  of  the  law,  and  each  very  eminent,  powerful,  and  successful  in 
enforcing  the  rights  of  his  clients  ;  George  Wood,  conspicuous  for  his 
wonderful  learning,  his  wonderful  power  in  stating,  and  his  mathe- 
matical power  in  arguing  his  cases ;  James  T.  Brady,  whose  genial 
nature,  wide  learning,  and  masterly  eloquence  made  him  one  of  the 
strongest  and  most  conspicuous  men  of  his  day ;  James  W.  Gerard? 
irresistible  socially  and  at  nisi  prius,  he  bewitched  juries,  convinced 
the  courts,  and  was  an  unsurpassed  favorite  with  the  bar ;  John  An- 
thon,  who  for  years  monopolized  the  Superior  Court,  in  which  it  was 


VD^WOUTU. 


said  of  him  that  "  he  resided,"  and  whose  light  reading  was  the  Greek 
and  Latin  classics ;  William  Mitchell,  the  manly,  gentle,  strong,  and 
learned  judge  ;  Edgar  S.  Van  Winkle,  a  wise  guide  and  counsellor  of 
trustees  of  banks  and  other  corporations  and  of  great  estates  ;  Chief- 
Justice  Samuel  Jones,  at  one  time  chancellor,  for  many  years  judge  of 
the  Superior  Court  and  afterward  of  the  Supreme  Court,  and  of  whom 
we  all  spoke,  not  irreverently,  as  "  the  old  chief,"  than  whom,  perhaps, 
no  more  learned  judge  or  able  lawyer,  save  Chancellor  Kent,  could  be 
named  at  the  bar.  When  he  left  the  bench,  he  returned  to  the  prac- 
tice, in  which  he  continued  to  his  death.  Grave,  reserved,  and  digni- 
fied as  he  was  in  manner,  no  man  enjoyed  in  youth  more  than  he  did 
in  his  old  age  the  pleasures  of  society  and  of  festive,  social  entertain- 
ments. We  all  used  to  wonder  that  at  fourscore  years  his  tastes  and 
sympathies  were  so  keen,  and  that  at  and  after  midnight  convivial  fes- 


IIISIOKY    OK   TIIK    in;N(ll     AM)    HAU   OV    NKW    VOKK  24:{ 

livitics  were  so  a((r:i('(i\('  lo  liim.  Wni  I  coiifcss  fli;il  of  Intc  I  view 
tliis  ill  :i  (liH\M(Mit  linlit,  :iii(l  do  iiol  now  wonder,  oi-  pciccivf  .my  icason, 
why  lu'  should  not  liavc  enjoyed  (hem  as  lie  did. 

But  1  must  stop.  1  hav(>  ti"esi)as.se(l  too  much  on  your  hours,  and 
yet  T  have  not  named  a  tithe  of  the  ••ood  men  and  strong,  ju<l,i;es  and 
lawyers,  whose  memories  shall  be  iu'e.sei'ved  by  enduring  iceords — men 
among  the  ablest  and  foremost  of  their  day,  such  as  Smith  Thompson, 
the  justice  of  the  Supreme  Court  of  the  I'nited  States  for  this  circuit, 
grave,  austere,  the  very  incarnation  of  judicial  dignity  and  power;  his 
successor  in  that  ollice,  Samuel  Nelson,  formerly  chief-justice  of  this 
state,  the  most  imperial  man  in  his  personal  appearance  and  bearing 
on  the  bench  I  ever  saw,  unsurpassed  in  clear,  strong,  sound  sense  and 
good  law,  honoi-ed  and  loved  by  the  bar,  and  the  pride  of  the  state ; 
the  great  admiralty  judge,  Samuel  R.  Betts ;  the  excellent  lawyers 
and  judges,  Samuel  A.  Talcott,  Charles  O'Conor,  George  Griffin,  Henry 
n.  s'torrs,  Peter  \V.  Radcliff,  Henry  E.  Davies,  John  A.  Lott,  John  W. 
Brown,  Grenville  T.  Jenks,  James  Emott,  Joseph  S.  Bosworth,  Jolin  ' 
Van  Biiren,  Lewis  B.  Woodrutr,  the  Emmetts,  the  Sandfords,  Joshua 
Spencer,  George  and  Edward  Curtis,  E.  H.  Owen,  Samuel  B.  Kuggles, 
Josiah  Sutherland,  Benjamin  W.  Bonney,  George  E,.  J.  Bowdoin, 
Quincy  Morton,  Hugh  Maxwell,  Thomas  L.  Wells,  G.  G.  Yan  AVogenen, 
the  Blunts,  Humi)hrey  H.  Anderson,  Benjamin  K.  True,  David  Gra- 
ham, Hiram  Ketchum,  David  S.  Jones,  Greene  C  Bronson,  John  W. 
Edwards,  Elisha  W.  King,  John  L.  Mason,  Ambrose  L.  Jordan,  John 
Cleaveland,  Anthony  L.  Robertson,  Charles  P.  Kirkland,  Alexander 
W.  Bradford,  Erastus  C.  Benedict,  Charles  ^V.  Sanford,  William  A. 
Beach,  Elijah  Paine,  George  Wilson,  and  very  many  others  of  equal 
Avorth.  I  might  well,  did  time  permit,  recall  the  names  of  the  eminent 
judges  of  the  courts,  and  of  the  renowned  lawyers  of  the  interior  of 
the  state,  and  of  such  of  our  honored  brethren  as  have  more  recently 
passed  away. 

I  am  well  aware  that  gentlemen  present,  who  did  not  know  those 
whom  I  have  named,  will  think  that  I  have  dealt  in  unmeaning  be- 
cause unsparing  eulogies.  But,  "my  conscience  bearing  me  witness," 
I  have  uttered  no  word  respecting  any  of  them  which  they  did  not 
merit ;  and  the  one  or  two  contemporaries  of  all  of  them  who  survive 
and  are  ju-esent  here  will,  I  am  sure,  concur  in  what  I  have  said  of 
them.  Full  well  I  know  how  vain  is  this  mere  mention  of  the  names 
which,  while  lingering  here,  I  cherish.  Full  well  I  know  that  it  recalls 
few  memories  to  most  of  you.  But  it  seems  some  tribute  to  the  hon- 
ored dead  to  invoke  them  as  elder  brethren  of  the  distinguished  men 
assembled  here  to-night. 


BBOTT,  BENJAMIN"  VAUGHN  (born  in  Boston,  June  4, 
1830 ;  died  in  Broolvlyn,  February  17,  1890),  was  a  son  of 
Jacob  Abbott,  author  of  tlie  Rollo  books.  He  was  graduated 
at  the  New  York  Universitj^  in  1850,  studied  for  a  year  at  tlie 
Cambridge  Law  School,  and  was  admitted  to  the  bar  in  New  York  City 
in  1852.  He  entered  upon  the  practice  of  the  law  in  partnership  with 
his  younger  brother,  Austin.'  After  several  years  of  practice  he  began 
to  devote  himself  chiefly  to  legal  writing.  Alone  or  in  collaboration 
with  his  brother  he  was  the  author  or  compiler  of  nearly  one  hundred 
law  volumes. 

As  secretary  of  the  New  York  code  commission  he  personally 
drafted  the  report  of  a  penal  code,  which  was  submitted  to  the  legisla- 
ture in  1865,  and  became  the  basis  of  the  present  code.  In  June,  1870, 
he  was  appointed  by  President  Grant  one  of  three  commissioners  to 
revise  the  statutes  of  the  United  States.  This  work,  prosecuted  for 
three  years,  resulted  in  the  consolidation  of  sixteen  volumes  of  federal 
laws  into  one  large  octavo  volume.  In  continuation  of  his  labors  in 
this  field  he  devoted  six  years  to  the  i^reparation  of  a  new  edition  of  the 
"  United  States  Digest  "  (1879),  reducing  the  original  digest  to  thirteen 
volumes,  to  which  he  added  nine  annual  supplements.  He  also  com- 
piled a  "  National  Digest "  in  five  volumes,  containing  all  the  important 
acts  of  congress,  decisions  of  the  United  States  Supreme  Court,  Circuit 
and  District  Courts,  Court  of  Claims,  etc.,  from  the  foundation  of  the 
government  to  December,  1888. 

Among  his  other  important  works  are  "  A  Digest  of  Decisions  on 
Corporations  from  1860  to  1870"  (1872),  "A  Treatise  on  the  Courts  of 
the  United  States  and  their  Practice"  (1877),  a  "'  Dictionary  of  Terms 
in  American  and  Euglish  Jurisprudence "  (1879),  and  "  Judge  and 
Jury"  (1880),  a  collection  of  miscellaneous  articles.  He  was  a  frequent 
writer  for  the  press  and  the  periodicals,  contributed  many  articles  to 
the  "  Medical  Reference  Handbook,"  and  sei-ved  as  editor  for  the 
Lawyers'  Co-operative  Publishing  Company  of  Rochester. 

His  contributions  to  legal  literature  belong  in  the  first  rank  of 
such  works.  His  digests  and  compilations  are  uniformly  distinguished 
by  a  methodical  arrangement  and  a  system  of  analysis  which  have 
done  much  to  simplify  federal  and  state  law. 


IIISKUJV 


iti;\<  II    AM 


'Jl."i 


LKXAXDKK,  .lAMKS  0>()ni  in  Scotland  iiboiit  1«)'.)();  (li."<l  in 
New  York,  April  2,  I7r)(>),  was  one  of  the  most  eminent 
leaders  of  the  New  York  colonial  bar.  lie  fled  to  vVmerira 
in  17 1(5,  bein^  compelled  to  leave  Knuland  on  account  of  his 
participation  in  the  Stuart  cause.  lie  was  the  lirst  oflicial  rei^order  of 
the  town  of  Perth  Aniboy,  New  Jersey  (1718),  and  liaving  served  as  an 
ollicer  of  (>n<'ineers  in  Scotland  was  appointed  surveyor-<?eneral  of  New 
York  and  New  Jersey,  lie  studied  law  in  his  int<'rvals  of  leisure.  He 
was  counsel  in  many  important  cases,  notably  the  f.-tiiious  case  of 
Peter  Zenger,  i)ublisher  of  the 
New  York  Weekh/  Journal, 
which,  resulting  Jinally  in  the  dis- 
charge of  Zenger,  established  for 
all  time  the  princii)le  of  tlie  lib- 
erty of  the  press  in  America.  In 
consequence  of  the  bold  stand 
that  he  took  in  that  case  as  one 
of  Zenger's  counsel,  contending 
that  the  court  before  which  the 
accused  was  brought  was  not  a 
legally  constituted  tribunal,  his 
name  was  stricken  from  the  roll 
of  practicing  lawyers  for  contempt 
of  court,  but  he  was  subsequently 
reinstated.' 

He  was  for  many  years  prom- 
inent in  the  government  of  the 
colony,  serving  in  the  colonial  leg- 
islature and  council  as  attorney- 
general  (1721-23)  and  as  secretary  of  the  province.  He  was  one  of  the 
principal  regular  contributors  to  Zenger's  Weekly  Journal.  He  main- 
tained a  correspondence  with  Halley,  royal  astronomer  at  Greenwich, 
and  other  learned  mathematicians,  and  co-operated  with  Franklin  and 
others  in  founding  the  American  Philosophical  Society.  John  Tabor 
Kempe,  William'  Smith,  Jr.,  James  Duane  and  Peter  R.  Livingston 
were  law  students  at  the  same  time  in  his  office.  He  acquired  great 
wealth  and  left  a  large  estate.  He  resigned  liis  claim  tp  the  earldom 
of  Stirling  to  his  son  William  (the  celebrated  Lord  Stirling  of  the 
Revolution),  who  prosecuted  it  without  success.  Politically  he  be- 
longed to  the  whig  faction  of  the  colony.  His  death  resulted  from  a 
severe  illness  occasioned  by  the  fatigue  and  exposure  of  a  trip  that  he 
made  to  Albany  to  oppose  a  ministerial  scheme  inimical  to  the  rights 
of  the  colony. 

>  See  pp.  66-C8  of  this  volume. 


ey^/   ^d^u^^ 


Numb,  LXIV. 


THE 


New -York  Weekly   JOURNAL 


Coritaimng    the   frefjeji   Admces^    Foreign^   and     Vomcjlkk, 


Mt/r/Dy/r  January  2.7th,    1734. 


JuJIum  et  tenatem  prcpofiti  Virum^ 
Kon  civium Ardor  prava  jnbentium^ 
Kon  Vultui  inftantis  Tyrami, 
Mente  quiitit  folida. 

Hor. 

HE  firfl  eHential  Ingre- 
dient NecefTary  to 
form  a  Patriot,  is  Im- 
partiality •,  for  if  a 
Perfon  fliall  think 
himfelf  bound  by 
any  other  Rules  but  thofe  of  his  owti 
Reafon  and  Judgment,  or  obliged  to 
follovr  the  Didates  of  others,  who 
flrill  appear  thQ  Heads  of  the'  Party 
he  is  ingaged  in,  lie  linlcs  below  the 
Dignity  of  a  Humane  Creature,  ,  and 
voluntarily  refigns  thofe  Guides  which 
Nature  has  given  him,  to  dired  h'lm 
in  all  Spheres  of  Life. 

The  Coldnefs,  and  fometimes  Dlf- 
dain,  wliich  a  Man  governed  thus  by 
the  Principles  of  Honour  generally 
meets  with  on  fuch  Occafions  from 
the  Friends  he  has  ever  aded  in  Con- 
cert with,  for  the  former  Parr  of  his 
Life,  are  Confidernficjns  which  but 
too  often  fubdue  the  bed  inclined  Spi- 
rits, and  prevail  with  'them  to  be 
paflive  and  obedient,  rather  than  ac- 
tive and  refolute  :  But  if  fuch  Per- 
Ibns  coald  but  once  feel  the  Comfort 
and  Pleafurc  of  having  done  their 
Duty,  they  would  meet  with  a  fuffi- 
cient  Reward  within  themfelvefe,  to 
over  ballancc  the  Lofsof  their  Friends, 
or  the  Malice  !of  their  Enemies. 


Ambition  and  Avarice  are  two  VIt 
ces,  which  are  diredly  oppoGte  to  the 
Charader  of  a  Patriot,  for  tho*  an 
Jncreafe  of  Power,  or  of  Riches,  may 
be  the  proper  Reward  of  HonouiLancJ, 
Merit,  and  the  moft  honeft  Statefman 
may,  with  Juftice  accept  of  either  ; 
yet  when  Vhe  Mind  is  infefted  with  a 
Thirfl:  after  them,  all  Notions  of 
Truth,  Principle  and  Independency 
are  Loft  in  fuch  Minds,  and,  by 
growing  Slaves  to  their  own  Paffions,. 
they  become  Naturally  fubfervient  to 
thofe  who  can  indulge  and  gratify 
them. 

In  public  Affaiis  it  is  the  Duty  o£ 
every  Man  to  "be  free  from  perfooal 
Prejudices  j  neither  ought  we  to  op- 
pofe  any  Step  that  is  taking  for  the 
Good  of  our  Country,  purely  becaufe 
thofe  that  are  the  Contrivers  and  Ad- 
vifers  of  it,  are  Obnoxious  to  us. 
There  are  but  too  many  Precedents  of 
this  Nature,  when  Men  have  caft  the 
moft  black  Colours  on  the  Wifeft  of 
Admlniftrations,  becaufe  thofe  that 
had  the  Diredion  of  Affairs  were 
their  Enemies  in  private  Life;  and 
this  illWay  of  Judging  may  be  atten- 
ded with  dangerous  Confequences  to 
the  common  Weal. 

Intrepidity  and  Firmnefs  are  t^o 
Virtues  which  every  Patriot  muftr  be 
Mafter  of,  or  elfe  all  the  other Taknt* 
he  is  poiTefs'd  of  are  ufelefsand  barren.; 
Whoever,  therefore,  when  he  has 
formed  a  Judgment  on  any  Subjed re- 
lating 


IIISTOIJY    OF     IlIK    HKNCII     AND    IIAIt    ()!•     NKW    VolIK 


'J47 


LLKN,  lIHNin'  WII.DKR  (born  :it  Alfred,  MjiiiK',  OctoIxT 
IS,  1h;{;{;  (lied  in  New  York,  October  14,  1891),  was  the  son  <.f 
Honorable  William  (hitter  Allen,  for  many  y<!ars  ju(l^«?  of 
probatt!  for  York  connly,  Maine,  He  was  educated  at  Dai't- 
inoulli  College,  graduating  in  the  class  of  185(5.  11(^  began  his  jjrejjara- 
tion  for  tlu^  bar  in  the  ollice  of  Seth  J.  Thomas  in  Boston,  and,  (;oming 
to  New  York,  iinished  his  studies  under  Honorable  Charles  A.  liapallo, 
being  admitted  to  practice  in  1858.  He  was  chief  clerk  of  the  district- 
attorney's  office  during  the  administraticm  of  Nelson  J.  AVaterbury. 
and  subsequently  became  Judge  Waterbury's  ])artner.  In  1807  he  was 
ai)pointed  a  register  in  bankruptcy  by  Chief-Justice  Chase,  a  position 
which  he  held  for  fourteen  years.  Governor  Cleveland  appointed  him  in 
1884  judge  of  the  Court  of  Common  Pleas  to  fill  a  vacancy,  and  in  the 
fall  of  that  year  he  was  elected  for  a  full  term. 

Judge  Allen  was  highly  popular  witli  the  profession,  and  was  much 
beloved  in  the  social  relations  of  life.  He  was  a  democrat  in  politics, 
and  served  for  a  long  i)eriod  of  years  as  one  of  the  governors  and  the 
secretary  of  the  Manhattan  Club. 


ILLEN,  WILLIAM  F.,  was  born  in  Windham  county,  Con- 
necticut, July  28,  1808,  and  died  at  Oswego,  New  Y^ork, 
June  3, 1878.  He  was  admitted  to  the  bar  at  an  early  age, 
and  came  to  New^  York  state  to  practice  his  profession, 
rapidly  advancing  to  an  eminent  position  at  the  bar.  At  the  age  of 
forty  he  was  elected  a  judge  of  the  Supreme  Court  for  the  5th  judicial 
district,  and  upon  the  expiration  of  his  term  of  eight  years  lie  was 
re-elected.  In  1863  he  removed  to  New  Y'ork  City,  where  for  several 
years  he  was  engaged  in  private  practice.  In  November,  1867,  he  was 
elected  controller  of  the  state  on  the  democratic  ticket.  His  adminis- 
tration of  the  office  was  signalized  by  a  marked  reduction  in  the 
state  debt.  In  his  annual  reports  to  the  legislature  he  dwelt  upon  the 
excessive  cost  to  the  state  of  maintaining  the  canals  and  prisons — 
abuses  which  have  since  been  righted.  While  still  occupying  the 
position  of  controller  he  was  elected  to  the  bench  of  the  Court  of 
Appeals.     He  served  in  that  office  from  1871  until  his  death. 

He  ranks  among  the  very  able  judges  of  the  higher  courts  of  the 
state,  and  the  many  learned  opinions  which  he  wTote  enjoy  high 
repute  for  authority. 


[NOEL,  WILLIAM  G.  (born  on  Block  Island,  July  17,  1790; 
died  at  Angelica,  New  Y^'ork,  August  13, 1858),  was  descended 
from  an  old  American  family,  whose  first  ancestor  emigrated 
from  Warwick,  England,  early  in  the  seventeenth  century. 
He  was  reared  on  a  farm,  and  was  almost  wholly  deprived  of  educa- 


248  HISTORY    OF   the   bench  and   bar   of   new  YORK 

tional  opportunities.  Ambitious  for  knowledge,  however,  he  educated 
himself  by  the  help  of  such  books  as  he  could  procure,  and,  resolving 
to  fit  himself  for  the  legal  profession,  he  entered  the  office  of  William 
Dowse,  a  lawyer  in  Cooperstown,  New  York,  afterward  continuing  his 
studies  in  the  office  of  Colonel  Farrand  Stranahan  of  the  same  place. 
By  severe  efforts  and  rigid  economy  he  managed  to  support  himself 
during  his  long  period  of  preparation  for  the  bar.  It  was  not  until 
1817,  at  the  age  of  twenty-seven,  that  he  was  admitted.  He  became 
one  of  the  leaders  of  the  Otsego  county  bar.  In  1821  he  was  chosen 
surrogate  of  the  county,  and  he  represented  the  district  in  congress 
from  1821:  to  1832.  In  1833  he  removed  to  Hammondsport  and  formed 
a  copartnership  with  Honorable  Morris  Brown.  This  lasted  until  1835, 
when  the  firm  of  Angel  &  Grover  was  established,  the  junior  member 
being  Martin  Grover,  afterward  the  distinguished  judge  of  the  Court 
of  Appeals,  who  had  received  his  legal  training  in  Mr.  Angel's  office. 
He  was  a  member  of  the  constitutional  convention  of  1846.  He  was 
elected  judge  of  Allegany  county  in  1846,  and  served  for  four  and  one- 
half  years,  when  he  retired. 


[XTHON,  JOHN"  (born  in  Detroit,  Michigan,  May  14,  1794 ; 
died  in  New  York  City,  March  5,  1863),  was  the  second  son 
of  Doctor  G.  C.  Antlion  and  a  brother  of  the  distinguished 
Doctor  Charles  Anthon,  the  classical  writer.  He  was  gradu- 
ated at  Columbia  College  at  the  early  age  of  seventeen  with  the  high- 
est honors  of  his  class,  studied  law,  and  upon  attaining  his  majority 
was  admitted  to  practice  in  the  Supreme  Court.  He  became  one  of 
the  foremost  lawyers  of  his  day.  During  the  war  of  1812  he  was  fre- 
quently employed  as  judge  advocate.  He  was  in  command  of  a  com- 
pany of  militia  and  served  in  the  defence  of  New  York  City  during 
that  conflict.  As  one  of  the  most  prominent  lawyers  practicing  in  the 
Mayor's  Court,  he  drew  the  act  which  was  passed  in  1821  by  the  legis- 
lature changing  the  name  of  that  court  to  the  Court  of  Common  Pleas 
for  the  County  and  City  of  New  York,  and  creating  a  first  judge  to 
hold  office  during  good  behavior  or  until  he  should  reach  the  age  of 
sixty  years.  Under  this  act  the  name,  which  had  been  retained  for  one 
hundred  and  fifty-six  years,  denoting  the  municipal  origin  of  the  court, 
was  abandoned  and  a  permanent  law  judge  appointed  in  the  nominal 
place  of  the  mayor,  who  had  long  since  ceased  to  preside. 

Mr.  Anthon  for  years  afterward  was  one  of  the  leading  practition- 
ers before  this  court.  He  was  one  of  the  founders  of  the  New  Y'ork 
Law  Institute  and  was  its  president  at  the  time  of  his  death.  He  was 
a  thorough  student  of  the  law  and  wi-ote  several  treatises.  He  pub- 
"Anthon's  Law  Student"  and  "American  Precedents"  (1810),  "Di- 
gested Index  to  the  Reports  of  the  United  States  Courts"  (1813),  "Re- 


IIISIOKV    OK    IFIK    HKNCIl    AND    HAU    (»F    NKW    YOIJK  249 

prints  of  Omscs  at  A'/.v/  Piiiis  in  \\w  New  York  SiijirciiH'  (.'oiirt  "  (1820), 
and  "An  Analytical  Abridiiincnt  of  Hlackstonc's  (Joniincntarics,"  witli 
a  prefatory  essay  "On  the  Study  of  Liiw"  (2d  ed.,  18:32). 


|NTII()N,  WILLI A>r  IlKNKY  (born  in  New  York  City,  Au- 
gust 2,  1827  ;  died  there  November  7,1875),  Vvas  a  son  of  .lolin 
Anthon.  He  studied  law  under  his  father's  direction  and 
was  admitted  to  the  bar  in  1848.  lie  was  a  member  of  the 
state  lei;islatui-e  and  served  on  Governor  Morgan's  staff  as  judge  advo- 
cate during  the  war.  He  was  prominent  as  a  jiractitioner.  He  was 
connected  with  a  number  of  celebrated  cases,  notably  the  Brinckly 
divorce  case  and  the  trial  of  the  rioters  who  burned  the  quarantine 
buildings  on  Staten  Island  in  1858.  In  this  trial  he  was  the  counsel 
for  the  rioters. 


IRTIIUR,  CHESTER  ALAN,  twenty-first  president  of  the 
United  States  (born  in  Fairfield,  Franklin  county,  Vermont, 
October  5,  1830  ;  died  in  New  Y'ork  City,  November  18, 1886), 
was  the  eldest  son  of  Reverend  William  Arthur  and  Melvina 
Stone.  His  father  was  born  in  Antrim,  Ireland,  in  1796,  was  graduated 
at  Belfast  College,  came  to  America,  studied  law,  was  then  called  to  the 
Baptist  ministry,  and  was  finally  settled  as  pastor  of  the  Calvary  Bap- 
tist Church  of  Albany,  New  York.  He  removed  to  Schenectady,  pub- 
lished a  magazine,  the  Antiquarian. and  an  "Etymological  Dictionary 
of  Family  and  Christian  Names."  He  was  learned  in  the  classics  and 
history,  and  gave  the  latter  years  of  his  life  to  literary  pursuits.  He 
died  in  Newtonville,  near  Albany,  October  27, 1875.  Mr.  Arthur's  ma- 
ternal ancestor,  Uriah  Stone,  was  a  New  Hampshire  pioneer,  who  mi- 
grated from  Hampstead  to  the  Connecticut  River  in  1763. 

Chester  A.  Arthur  was  graduated,  from  Union  College  in  1848  at 
eighteen  years  of  age.  Deciding  w^hile  in  college  to  pursue  the  law,  he 
attended  a  law  school  at  Ballston  Spa  and  for  a  brief  period  continued 
his  legal  studies  at  Lansingburg,  where  his  father  then  resided.  In  1851 
he  was  principal  of  an  academy  at  North  Pownal,  Bennington  county, 
Vermont,  where  in  1854  James  A.  Garfield,  then  a  student  in  Williams 
College,  taught  i)enmanship  during  the  winter  vacation.  In  1853  he 
entered  the  law  office  of  Erastus  D.  Culver,  New  Y'ork  City,  as  a  stu- 
dent, and  in  the  same  year  he  was  admitted  to  the  bar  and  became  a 
member  of  the  firm  of  Culver,  Parker  &  Arthur.  From  the  beginning 
he  was  successful  in  his  profession,  and  before  he  reached  the  age  of 
twenty-five  he  was  connected  as  counsel  with  two  cases  of  great  public 
interest  and  consequence,  involving  the  rights  of  the  negro.  The  first  of 
these  was  the  notable  Lemmon  case.  Jonathan  Lemmon,  a  slaveholder,  in 
1852  brought  to  New  Y'ork  from  Virginia  eight  of  his  slaves,  designing 


250  HISTORY   OF  THE  BENCH   AND  BAR  OF  NEW   YORK 

to  sliip  them  by  rail  to  Texas.  A  writ  of  habeas  corpus  was  obtained 
from  the  Superior  Court  of  the  City  of  New  York,  in  consequence  of 
which  the  slaves  were  released  on  the  ground  that  they  had  become 
free  men  by  being  brought  by  their  ntoster  into  a  free  state.  Mr.  Ar- 
thur, at  that  time  still  a  student,  took  a  decided  interest  in  behalf  of 
the  slaves,  having  from  his  early  associations  formed  strong  anti-slav- 
ery convictions.  In  the  resulting  litigation  he  was  one  of  the  counsel 
for  the  negroes  in  association  with  Ogden  Hoffman,  E.  D.  Culver,  Jo- 
seph Blunt,  William  M.  Evarts,  and  the  attorney-general — the  chief 
counsel  for  the  slaveholder  being  Charles  O'Conor.  The  other  case, 
equally  important  and  celebrated,  was  that  of  Lizzie  Jennings  against 
the  Fourth  Avenue  Railroad  (1855),  in  which  the  right  of  colored  per- 
sons to  ride  in  the  street  cars  of  New  York  was  established. 

Mr.  Arthur's  political  activities  and  public  services  of  course  are 
the  distinctive  phases  of  his  life,  yet  for  nearly  twenty  years  after  his 
admission  to  the  bar  his  professional  career  was  interrupted  by  only  a 
brief  period  of  official  service,  and  he  is  well  entitled  to  remembrance 
among  the  eminent  and  able  members  of  the  bar  of  the  past. 

His  first  vote  was  cast  for  W infield  Scott,  the  whig  candidate  for 
president  in  1852,  and  he  was  one  of  the  organizers  of  the  republican 
party  in  the  state.  In  1861  Governor  Morgan  appointed  him  to  a  place 
on  his  staff  as  engineer-in-chief  with  the  rank  of  brigadier-general,  and 
in  April  of  that  year,  at  the  breaking  out  of  the  war,  he  became  acting 
quartermaster-general  with  headquarters  in  New  York  City.  In  this 
position  it  was  his  duty  to  prepare  and  forward  the  New  York  state 
troops,  and  he  rendered  invaluable  services.  He  went  out  of  office  on 
December  31,  1862,  with  the  expiration  of  Governor  Morgan's  term. 

He  now  formed  a  legal  copartnership  with  Henry  G.  Gardner, 
which  lasted  until  1867.  After  the  dissolution  of  the  firm  he  practiced 
independently  for  five  years.  During  this  time  he  was  for  a  while 
counsel  for  the  New  York  City  department  of  assessments  and  taxes. 
In  December,  1871,  President  Grant  appointed  him  collector  of  the 
port  of  New  York.  Soon  after  accepting  this  office  he  organized  (Jan- 
uary 1,  1872)  the  law  firm  of  Arthur,  Phelps  &  Knevals.  He  continued 
to  serve  as  collector  of  the  port  until  July  11,  1878,  when  he  was  sus- 
pended by  President  Hayes,  who,  being  in  sympathy  with  the  anti- 
Conkling  faction  of  the  New  York  republicans,  had  resolved  upon  Mr. 
Arthur's  removal  as  a  stroke  of  policy.  Upon  leaving  the  collector's 
office  he  returned  to  the  practice  of  the  law,  his  firm  now  being  styled 
Arthur,  Phelps,  Knevals  &  Ransom. 

Mr.  Arthur's  subsequent  career  is  a  part  of  the  history  of  the  na- 
tion, and  it  does  not  come  within  the  scope  of  this  article  to  review  it 
with  any  degree  of  formality.  At  the  national  republican  convention 
of  1880  he  co-operated  heartily  with  Senator  Conkling  in  the  endeavor 
to  nominate  General  Grant  for  a  third  term.  The  selection  of  Garfield 
as  a  compromise  candidate  was  followed  by  the  choice  of  Mr.  Arthur 


IIISTOUY    OV   TIIK    lUONCII    AM)    HAIi   OK    NKW    VoKK  SHI 

lor  lli(!  vicc-picsidiMicy,  ;is  :i  coiiccssioii  to  (lu;  (iiiiiil-CJoriUliii^  cli'iiicnt 
ol"  the  party.  (Jiirlicld  and  Artliiii-  uci-e  clectiHl  (carrying  New  York 
state  by  2I,()(U)),  and  on  March  4,  18.S1,  they  w('i"(?  sworn  into  oflice.  In 
llie  nuMnorablo  controversy  between  Pi-esident  (iarlield  and  th<i  New 
York  senatoi's  on  th(>  (Question  of  ])atroiia,u,e  Vice-Presi<h'nt  Arthnr 
siikMl  with  Senatois  ('oids.ling  and  Tlalt.  I>ut  after  the  tragedy  of  .Inly 
i?,  1881,  tiiis  factional  strilc'  came  suiUlenly  to  an  end,  and  tlie  dignified 
and  patriotic  Ix^ai'ing  of  the  vice-pi'esi(UMit  during  the  jx-riod  of  sus- 
jH'nse  whicli  followed  went  far  toward  i-eassuring  those  who  at  lirst 
were  disposed  to  regard  the  possibility  of  his  accession  to  the  presi- 
dency with  grave  apprehension.  Ueneral  Garfield  died  of  his  wound 
on  Septenibei-  li),  and  the  next  day  Mr.  Arthur,  at  his  residence  in  New^ 
York,  1'23  Lexington  avenue,  was  sworn  in  as  president  before  Judge 
John  R.  Brady,  of  the  New  York  Supivme  Court,  Returning  to  Wash- 
ington he  again,  on  the  22d,  took  the  oath  before  Chief-Justice  Waite. 
delivering  a  brief  inaugural  address,  which  was  admirable  both  for  its 
spirit  and  its  terms. 

President  Arthur's  administration  was  of  a  conservative  character, 
and,  on  the  whole,  met  the  best  expectations  of  the  country.  In  the 
national  republican  convention  of  1884  his  name  was  presented  for  the 
presidential  nomination,  and  he  received  278  votes  on  the  first  ballot,  but 
Mr.  Blaine  was  chosen  as  the  candidate  of  the  party.  At  the  close  of  his 
term,  March  o,  1885,  he  retired  to  private  life.  He  died  suddenly  from 
apoplexy  at  his  home  in  New  York,  November  18,  1886. 

Mr.  Arthur  was  one  of  the  earliest  members  of  the  Association  of 
the  Bar  of  the  City  of  New  York. 


TTWOOD,  WILLIAM,  the  third  chief -Justice  of  the  state  and 
tlie  first  to  receive  his  commission  and  salary  directly  from 
the  crown,  was  a  son  of  John  Attwood  of  Bloomfield,  in 
Essex,  England.  The  date  of  his  birth  is  not  known.  He 
was  called  to  the  bar  in  1674,  and  was  admitted  a  fellow  of  Grey's  Inn. 
He  is  said  to  have  been  "  a  very  considerable  man  in  his  profession  in 
London,"  and  was  know^n  in  Westminster  Hall  and  at  the  bar  of  the 
House  of  Lords.  He  was  a  voluminous  author  on  historical  and  theo- 
logical subjects.  He  wrote  an  extensive  treatise  entitled  "  The  Funda- 
mental Constitution  of  the  English  Government,  proving  King  William 
and  Queen  Mary  our  lawful  King  and  Queen."  Another  of  his  works, 
"  The  Superiority  and  Direct  Dominion  of  the  Crown  of  England  over 
the  Crown  and  Kingdom  of  Scotland,"  gave  great  offence  in  Scotland 
and  was  burned  by  the  common  hangman,  by  order  of  the  Scottish 
parliament. 

The  lords  of  trade,  having  been  petitioned  by  the  colonial  gov- 
ernor of  New  York — Bellomont — to  strengthen  the  judiciary  by  the 


252 


HISTORY  OF  THE  BENCH  AND  BAR  OF  NEW  YORK 


appointment  of  a  chief-justice  with  siifficient  legal  training  to  admin- 
ister and  enforce  the  law,  sent  over  Attwood  in  the  summer  of  1701. 
In  addition  to  his  functions  as  chief- 
Justice,  he  was  a  member  of  the  council 
and  a  judge  in  admiralty  with  jurisdic- 
tion embracing  the  New  England  col- 
onies, New  York,  New  Jersey,  and 
Pennsylvania.  The  colony  was  at  that 
period  agitated  by  the  quarrels  of  the 
Leislerian  and  Bayard  factions.  Chief- 
Justice  Attwood  was  in  sympathy  with 
the  Leislerians,  and  in  the  trial  of  Bay- 
ard and  Hutchins  for  treason  his  bias 
and  arbitrary  acts  caused  much  dissatis- 
faction. After  the  arrival  of  Governor 
Cornbury  he  was  accused  of  corruptly 
perverting  justice  in  cases  before  him  in 
which  his  son  was  counsel.'  He  was  sus- 
pended from  office,  and,  apprehensive  of  arrest,  crossed  to  New  Jersey 
in  the  night  time  and,  adopting  the  name  of  Jones,  travelled  to  Vir- 
ginia, whence  he  sailed  for  England.  He  wrote  pamphlets  justifying 
his  course,  and  sought  reinstatement,  but  without  success.  He  died, 
in  England  about  1709.' 


LORD  BELLOMONT. 

Governor  of  New  York,  1098-1701. 


ACON,  EZEKIEL  (born  in  Boston,  Massachusetts,  September 
1,  1776  ;  died  in  Utica,  New  York,  October  18,  1870),  was 
graduated  at  Yale  College  in  1794  and  was  prepared  for  the 
law  in  the  Litchfield  (Connecticut)  law  school.  He  first 
practiced  in  Stockbridge,  Massachusetts,  and  for  twenty  years  re- 
mained a  member  of  the  Massachusetts  bar.  In  1806  and  1807  he  was 
a  member  of  the  state  legislature,  from  1807  to  1813  a  member  of  con- 
gress, from  1813  to  1815  chief-justice  of  the  Court  of  Common  Pleas 
for  the  western  district  of  Massachusetts,  and  in  1815  was  appointed 
1st  comptroller  of  the  treasury  of  the  United  States.  In  the  same 
year  he  removed  to  Utica,  New  York.  In  this  state  he  was  eminent  at 
the  bar,  serving  in  the  legislature,  as  judge  of  the  Court  of  Common 
Pleas,  and  as  a  member  of  the  constitutional  convention  of  1821.  He 
ran  for  congress  on  the  democratic  ticket  in  1824,  but  was  not  elected. 
In  1813  he  published  an  autobiographical  work,  "  Recollections  of  Fifty 
Years." 

■  In  a  letter  to  the  home  government,  Cornbury 
wrote : 

"Attwood,  in  the  execution  of  his  office,  ae  chief- 
justice  and  judge,  in  ahnost  all  cases  that  came  judicially 
before  him.  by  the  .general  report  of  ail  present,  did, 
openly,  notoriously  and  most  scandalously,  and  with 
wonderful  partiality,  in  almost  all  cases  in  which  his 
son  was  concerned  as  counsel,  espouse,  and,  indeed, 
pleaded  and  gave  countenance  to   such    causes,   and 


finally  gave  judgment  .on  ye  (son's)  side  ;  by  means  of 
which  justice  was  perverted,  ye  laws  abused,  and  ye 
subjects  exceedingly  injured  ;  which  recommended  his 
son  to  great  practice,  inid  largo  sums  of  money  was  by 
parties  given  to  liiin,  to  bn.v  liis  father's  favor." 

"For  a  history  of  Attwood's  career  and  the  Bayard 
trial,  gee  Honorable  Charles  P.  Daly's  articles  in  the 
Green  Sat;  for  March,  April  and  May,  1895. 


IllSTOUY    OK   TIIK    HKNCII    AND    BAR   OF    NKW    YoltK  2^)3 

ALDWIN,  .lOHN  (born  ;it  Lebanon,  Connectirut ;  di.'d  at 
Almond,  New  York,  in  1S43),  was  one  of  tlm  most  piominent 
western  New  A'ork  practitioners  of  his  time.  He  received  a 
^ood  etlucation  and  iniieiited  a  cond'oi-table  fortune  from  liis 
father's  estate.  Desiiiiii;  to  lit  himself  for  the  law,  he  entered  the 
ollice  of  Samuel  Miles  Hopkins,  at  Mo.scow,  Livingston  county.  New 
York.  Upon  his  admission  to  tlie  bar  he  commenced  practice  at 
Moscow.  Soon  afterward,  through  the  business  failure  of  a  brother 
whose  ])aper  he  had  endorsed,  his  entire  property  was  swept  away. 
Devoting  himself  energetically  to  his  profession,  he  rai)idly  made  a 
reputation  whicii  yielded  him  very  substantial  rewards.  Removing  to 
Dansville,  his  practice  gradually  extended  through  the  counties  of 
Allegany,  Livingston  and  Steuben.  In  1835  he  formed  a  copartnership 
with  Honorable  William  M.  Hawleyat  Hornellsville.  This  association 
was  dissolved  in  a  few  years,  and  afterward  Mr.  Baldwin  practiced 
alone.  He  was  noted  for  wit  and  cleverness  in  repartee,  and  also  for 
personal  peculiarities  which  sometimes  had  rather  eccentric  mani- 
festations.' 


ANGS,  FRANCIS  NEHEMIAH  (born  in  New  York  City, 
Februai-y  23,  1828  ;  died  in  Ocala,  Florida,  November  30, 
1885),  was  descended  from  a  puritan  ancestry.  His  father 
was  Reverend  Nathan  Bangs,  a  distinguished  clergyman  of 
the  Methodist  denomination  and  writer  on  religious  subjects.  Francis 
K.  Bangs  attended  the  Wesleyan  University  at  Middletown,  Connecti- 
cut, and  the  University  of  the  City  of  New  York,  graduating  in  1845. 
He  studied  law  at  Yale,  and  in  1850  was  admitted  to  the  bar  in  New 
YTork.  His  first  legal  copartnership  was  with  John  Sedgwick,  after- 
ward chief-justice  of  the  Superior  Court.  Among  the  other  prominent 
members  of  the  New  Y'ork  bar  with  whom  he  was  associated  at  various 
times  w^ere  George  Buckham,  Joshua  M.  Van  Cott,  Thomas  M.  North, 
C.  W.  Bangs  and  Francis  L.  Stetson.  His  firm  at  the  time  of  his 
death.  Bangs  &  Stetson,  was  universally  known  as  one  of  the  foremost 
law  firms  of  the  country. 

Mr.  Bangs  quickly  attained  an  eminent  position  in  his  profession, 
applying  himself  especially  to  bankruptcy  law  and  railway  and  cor- 
poration business.  As  attorney  and  counsel  for  the  assignee  of 
Ketchum,  Son  &  Co.,  a  firm  which  had  conducted  a  most  extensive, 
business  in  stocks  and  securities,  he  performed  his  duties  with  such 
fidelity  and  ability  that  ever  afterward  his  services  were  in  constant 
request  in  litigations  involving  great  interests.  Among  the  cases  in 
which  he  was  counsel  were  the  Cesnola  and  Havemeyer  estate  suits, 
and  those  resulting  from  the  Graut  &  Ward  failure.  He  was  an  in- 
defatigable worker,  frequently  devoting  fifteen  hours  a  day,  for  days 

'  For  an  entertaining  sketch  of  Mr.  Baldwin,  see  Proctor's  "  Bench  and  Bar  of  New  York." 


254       HISTOEY  OF  THE  BENCH  AND  BAR  OF  NEW  YORK 

in  succession,  to  a  single  task,  and  his  death  at  a  comparatively  early- 
age  was  ascribed  to  overwork. 

Mr.  Bangs  had  no  ambitions  except  in  the  line  of  his  profession, 
and  he  never  held  public  office  or  participated  actively  in  politics. 
But  he  co-operated  heartily  in  matters  of  public  concern  that  engaged 
his  interest  as  a  citizen.  A  republican  in  politics,  he  was  one  of  the 
founders  of  the  Union  League  Club.  He  was  also  an  original  member 
of  the  Association  of  the  Bar,  and  was  one  of  the  leaders  in  the  move- 
ment for  the  impeachment  of  the  "  ring "  judges,  Barnard,  Cardozo 
and  McCunn.  He  was  president  of  the  Bar  Association  in  18S2  and 
18S3. 


ARBOUR,  JOHN  MERRITT  (born  in  Cambridge,  Washing- 
ton county.  New  York,  September  5,  1807  ;  died  in  New  York 
City,  December  8,  1881),  was  admitted  to  the  bar  in  Chau- 
tauqua county,  and  soon  afterward  went  to  Michigan,  re- 
maining there  until  1848.  He  was  elected  a  justice  of  the  peace,  was 
appointed  by  the  governor  (1837)  a  commissioner  to  devise  and  put 
into  operation  a  system  of  internal  improvements,  and  served  for  eight 
years  as  a  county  judge.  Soon  after  his  return  to  New  York  he  was 
appointed  to  a  position  in  the  office  of  the  solicitor  of  the  treasury 
at  Washington.  Removing  to  New  York  City  in  1850  he  applied 
himself  earnestly  to  his  profession,  and  gradually  advanced  to  promi- 
nence. He  was  elected  associate- justice  of  the  Superior  Court  in  1861 
and  re-elected  in  1867.  He  succeeded  to  the  office  of  chief-justice  of 
the  court  upon  the  death  of  Chief-Justice  Robertson.  After  his  retire- 
ment from  the  bench  he  was  frequently  selected  as  referee  in  cases  of 
marked  importance  and  interest,  and  he  occasionally  aj^peared  as 
counsel  in  suits  involving  constitutional  questions  or  matters  of  con- 
siderable intricacy.  One  of  the  suits  prosecuted  by  Judge  Barbour  in 
his  latter  years.  Dodge  «*.  the  County  of  Platte  in  the  State  of  Missouri 
(82  N.  Y.,  218),  resulted  in  a  memorable  triumph.  As  counsel  for  the 
defence  he  carried  the  case  to  the  Court  of  Appeals,  which,  on  the 
strength  of  his  argument,  reversed  the  decision  that  had  been  rendered 
by  the  general  term  of  the  Superior  Court,  at  that  time  composed  of 
judges  of  conspicuous  ability  and  learning. 


ARBOUR,  OLIVER  L.  (born  in  Cambridge,  Wasliington 
county,  New  York,  in  June,  1811 ;  died  in  Saratoga,  New 
York,  December  17,  1890),  was  graduated  from  Fredonia 
Academy  in  1827,  studied  law  and  was  admitted  to  the  bar 
in  1832.  From  1847  to  1849  he  was  reporter  of  the  New  York  Court  of 
Chancery,  and  from  1848  to  1876  of  the  Supreme  Court.  Beside  his 
numerous  volumes  of  reports,  which  have  made  his  name  a  familiar  one 


iiisroKY  OK  Tiiio  liKNcii  AND  i!Ai:  OF  m:\v  yoi:k  'i'K) 

to  lawyers  :in<l  iii'c  :i(liiiii':il)lt'  cxMiiiplcs  of  consciiMitious  work,  liu  was 
the  author  ul"  a  uuniber  of  h'i;al  books  and  treatises. 


ARKER,  GEORGE  PAYSON  (bom  in  Rindge,  New  Hamp- 
shire, October  '25,  1S07  ;  died  in  J^umdo,  .lanuary  27,  1848), 
was  educated  at  Anihei'st  and  Union  colleges,  graduating 
from  the  latter  in  1S27.  While  attending  Union  College  he 
sludled  law  in  the  oflice  of  Alonzo  C  Paige,  author  of  Paige's  Chancery 
Reports.  After  his  graduation  he  removed  to  HulTalo  and  entered  the 
oflice  of  Stephen  G.  Austen.  Upon  his  admission  to  tlie  bar  in  1830  he 
became  Mr.  Austen's  partner.  In  1835  he  associated  himself  with  John 
T.  Hudson,  and  in  1837  he  organized  the  law  firm  of  Barker,  Hawley 
&  Sill,  with  Seth  C.  Hawley  and  Seth  E.  Sill,  which  in  1830,  by  the 
retirement  of  Mr.  Hawley,  became  Barker  &  Sill.  ]\Ir.  Barker  enjoyed 
a  high  reputation  at  the  bar  of  western  New  York,  and  his  career  gave 
promise  of  great  distinction  when  it  was  suddenly  cut  short  by  death. 
He  was  active  in  politics  as  a  democratic  orator  and  leader.  He  served 
in  the  assembly  in  1836,  was  nominated  for  congress  in  1837  but  de- 
clined, was  a  candidate  for  mayor  of  Buffalo  in  18-10,  being  defeated  by 
only  ten  votes,  and  was  chosen  attorney-general  of  the  state  in  1843. 
As  a  lawyer  his  strength  was  mainly  as  an  advocate  before  a  jury. 


ARLOW,  S.  L.  M.  (born  in  Granville,  Massachusetts,  in  1829  ; 
died  in  Glen  Cove,  Long  Island,  July  10,  1889),  was  one  of 
the  leading  railroad  lawyers  of  New  York.  The  firm  of 
Bowdoin,  Larocque  &  Barlow  was  formed  in  1852.  After- 
ward Judge  Shipman  and  Judge  Choate  joined  it.  Mr.  Barlow  took 
an  active  and  memorable  part  in  the  litigation  over  the  Erie  road  as 
counsel  for  the  corporation,  and  it  was  said  that  his  conduct  of  the 
case  cost  Jay  Gould  some  nine  millions  of  dollars.  His  own  fees  in  the 
case  aggregated  $250,000.  He  collected  a  very  valuable  library  of 
early  American  history,  and  was  a  writer  on  historical  and  other  sub- 
jects.   With  Henry  Harrison  he  edited  "  Notes  on  Columbus." 


ARNARD,  DANIEL  DEWEY  (bom  in  Sheffield,  Massa- 
chusetts, July  16,  1797  ;  died  in  Albany,  NeAv  York,  April  24 
1861),  was  graduated  at  Williams  College  in  1818  and  ad- 
mitted to  the  bar  in  1821.  He  established  himself  in  Roch- 
ester, and  was  elected  district-attorney  of  Monroe  county  in  1826  and 
a  member  of  congress  in  1827.  Removing  to  Albany  he  served  in  the 
state  legislature,  and  was  again  sent  to  congress  (1839-45).  He  repre- 
sented the  United  States  as  minister  to  Prussia  from  1850  to  1853.  He 
was  an  able  speaker  and  writer  on  the  questions  of  the  times. 


256        HISTORY  OF  THE  BENCH  AND  BAR  OF  NEW  YORK 

^EACH,  WILLIAM  AUGUSTUS  (born  in  Saratoga  Springs, 
New  York,  December  9, 1809  ;  died  in  Tarry  town,  New  York, 
June  28,  1884),  was  the  son  of  Miles  Beach,  a  prominent  and 
wealthy  merchant  of  Saratoga,  and  Cynthia  Warren,  sister 
of  Judge  Warren,  a  woman  of  rare  intellectual  endowments.  He 
attended  Partridge's  military  school  at  Norwich,  Vermont ;  his  scho- 
lastic training  was  limited  to  the  education  he  received  at  that  institu- 
tion. He  entered  upon  the  study  of  the  law  in  the  office  of  his  uncle, 
Judge  Warren,  and  was  admitted  to  the  bar  at  Saratoga  in  August, 
1833.  Gifted  with  remarkable  oratorical  abilities,  he  immediately 
sprang  into  prominence  as  a  jury  pleader,  and,  possessing  also  the 
substantial  qualities  of  thoroughness  and  conscientious  attention  to 
detail  in  the  preparation  and  prosecution  of  his  cases,  his  reputation 
as  one  of  the  most  consummate  lawyers  of  the  day  steadily  grew.  He 
was  elected  district-attorney  of  Saratoga  county  in  1843  and  continued 
in  that  position  until  1847.  He  never  afterward  held  public  office. 
About  1851  he  removed  to  Troy,  where  he  remained  until  1870.  Here 
he  was  associated  with  Job  Pierson  and  Levi  Smith  in  the  firm  of 
Pierson,  Beach  &  Smith,  which  after  the  death  of  Mr.  Pierson  was 
changed  to  Beach  &  Smith.  In  Troy  he  was  retained  by  the  promi- 
nent railroad  corporations  having  interests  in  that  city.  He  was  the 
leading  counsel  for  the  plaintiff  in  the  celebrated  Albany  bridge  case, 
brought  to  prevent  the  construction  of  a  bridge  over  the  Hudson  river. 
He  appeared  in  almost  every  important  jury  case  tried  during  his 
residence  in  Troy ;  defended  Canal  Commissioner  Dorn  and  secured 
his  acquittal ;  was  associated  with  James  T.  Brady  in  the  defence  of 
General  Cole,  charged  with  the  murder  of  L.  Harris  Hitchcock ;  at  the 
request  of  Governor  Seymour  defended  Colonel  North,  charged  before 
a  military  tribunal  at  Washington  with  frauds  in  connection  with  the 
forwarding  of  the  votes  of  the  soldiers  of  the  State  of  New  York  in 
the  presidential  election  of  18G4,  and  was  one  of  the  counsel  for  Com- 
modore Yanderbilt  in  the  famous  "  Five  Million  suit." 

In  1870  Mr.  Beach,  at  the  solicitation  of  Honorable  Charles  A. 
Kapallo,  went  to  New  York  to  take  the  place  in  the  latter's  law  firm 
made  vacant  by  his  election  to  the  bench  of  the  Court  of  Appeals.  The 
reorganized  firm  received  the  name  of  Beach  &  Brown.  Associated 
with  Mr.  Beach  were  his  son.  Miles  Beach,  and  Augustus  C  Brown. 
In  the  metropolis  he  was  engaged  in  many  of  the  great  cases  tried  from 
1870  until  his  death.  He  continued  and  completed  the  railway  litiga- 
tions of  Commodore  Vanderbilt ;  was  counsel  for  W.  H.  Vanderbilt 
in  the  will  contest ;  represented  the  plaintiff  in  the  Brinkly  divorce 
case  ;  was  the  leading  counsel  of  Judge  Barnard  in  the  impeachment 
proceedings  brought  against  him  ;  was  associated  with  Judge  Fullerton 
in  the  defence  of  Edward  S.  Stokes,  charged  with  the  murder  of  James 
Fisk  ;  was  the  leading  counsel  for  Theodore  Tilton  in  his  suit  against 
Henry  Ward  Beecher ;  was  the  leading  counsel  for  the  executors  of 


iK    rilK    HKNCII    AND    ISAlt    OF    NKW    VOItK 


2')7 


AIcxMiulcr  'r.  Slcwnrt,  for  tli«'  i)l:iinti(T  in  ilic  (loinptoii  divorce  cmsc  iiiid 
lor  till'  piniiililT  in  the  Mari»'  (Jiurisoii  suit  ;  niid  was  associated  with 
(liarU's  OH.'oiior  in  the  defence  of  Fraidv  Walworth,  tried  Tor  (lie 
murder  of  his  father. 

Mr.  Hoach,  althouiih  a  democrat,  never  look  any  i)art  in  politics 
and  even  refused  to  make  political  speeciies.  His  entire  ener<;ies  were 
devoted  to  the  active  practice  of  the  law.  lie  was  very  careh'ss  of  his 
posthumous  repntalion,  never  writing  out  his  si)eeches.  His  eridnence 
was  essentially  as  a  jury  lawyer,  combining  in  a  remarkable  manner  all 
the  qualities  requisite  for  success  in  that  lield.  Yet  to  his  brilliancy 
he  added  the  solid  virtues,  and  he  was  highly  effective  also  in  the 
argument  of  questions  of  law  before  the  appellate  tribunals. 


ir^^AYAKD,  NICHOLAS  (born  in  Alphen,  Holland,  about  1644; 
gff^^  died  in  New  York  City  in  1707),  was  a  nephew  of  Governor 
l/^i^  Stuyvesant,  and  was  brought  to  America  by  his  widowed 
"  ^^    mother  (Stuyvesant's   sister)  in   1647.     His   father,  Samuel 

Bayard,  fled  from  France  to  escape  religious  persecution,  and  died  in 
Holland.  His  mother,  who  was  an  accomplished  woman,  gave  him  a 
good  education.  He  was  made  clerk  of  the  com- 
mon council  in  1664,  and  afterward  w\as  Stuyve- 
sant's secretary  and  surveyor  of  the  province. 
He  filled  the  office  of  secretary  of  the  province 
under  the  Dutch  government  after  1672.  In  1685, 
under  the  administration  of  the  English  governor 
Dongan,  he  was  mayor  of  New  Y'ork.  He  pos- 
sessed legal  knowledge,  and  the  Dongan  charter 
was  framed  by  him.  He  took  a  leading  part  in 
the  opposition  to  the  Leisler  faction,  and  was 
instrumental  in  procuring  the  adoption  of  a  law 
(1691)  defining  it  as  treason  for  a  person  to  endeavor  by  force  of  arms 
"or  otherwise"  to  disturb  the  peace,  good,  and  quiet  of  the  king's 
government.  He  consequently  incurred  the  bitter  enmit}"  of  the  Leis- 
lerians,  and  later  was  arraigned  for  high  treason  under  this  very  act. 
Chief-Justice  Attwood,  before  whom  he  was  tried,  was  in  accord  with 
the  Leisler  party,  and  sentenced  him  to  death,  but  a  change  in  the  ad- 
ministration of  the  colony  saved  his  life  and  caused  Attwood  to  flee. 
The  judicial  proceedings  by  which  he  had  been  condemned  were  an- 
nulled, and  his  property  and  dignities  were  restored  to  him.' 


iAVARl)    ARM? 


EARDSLEY,    LEVI    (born    in    Hoosic,    Rensselaer  county, 
New  Y^ork,  November  13,  1785  ;  died  in  New  York,  March  19, 
1857),  was  a  grandnepheAv  of   Reverend  John  Beardsley,  a 
prominent  loyalist  of  the  Revolution.     He  was  admitted  to 
the  bar  in  1812.     He  w^as  a  member  of  the  assembly  in  1825,  which 

»  See  pp.  81-82  of  this  volume. 


258       HISTOKT  OF  THE  BENCH  AND  BAR  OF  NEW  YORK 

passed  the  first  railway  charter  in  the  United  States,  and  was  chosen 
to  the  state  senate  in  1829  and  1834,  becoming  its  president  in  1838. 
As  a  state  legislator  he  favored  liberal  measures.  He  served  for  a  long 
period  as  judge  of  the  Court  of  Errors  of  New  York.  He  published 
his  legal  opinions  and  a  volume  of  "  Reminiscences  "  (New  York,  1852). 


jEARDSLEY,  SAMUEL  (born  in  Hoosic,  Rensselaer  county, 
New  York,  February  6,  1790  ;  died  in  Utica,  May  7,  1860),  a 
brother  of  the  preceding,  was  a  farmer's  son,  and  was  brought 
up  in  Otsego  county.  By  self  study  and  wide  reading  he 
overcame  the  disadvantages  of  very  limited  educational  opportunities. 
He  taught  school,  and,  desiring  to  enter  the  medical  profession,  com- 
menced its  study  with  Doctor  White  in  Cooperstown.  Here  his  atten- 
tion was  soon  attracted  to  the  contests  in  the  legal  forum,  and  he 
decided  to  adopt  the  profession  of  the  law,  placing  himself,  at  the  age 
of  eighteen,  under  the  direction  of  Joseph  Hathaway  at  Rome.  In 
1813  he  enlisted  in  the  army,  in  which  he  served  for  a  year,  advancing 
to  the  rank  of  lieutenant.  At  the  expiration  of  his  term  of  enlistment 
he  resumed  his  studies,  and  in  1815  was  admitted  to  the  bar  at  Albany 
and  soon  after  engaged  in  practice  as  a  partner  of  his  preceptor.  He 
at  once  displayed  exceptional  qualities  of  energy  and  ability,  and  ad- 
vanced with  rapidity  to  prominence.  In  1821  he  was  appointed  district 
attorney  of  Oneida  county,  and  he  retained  that  office  until  1825,  when 
he  was  succeeded  by  Hiram  Denio,  afterward  judge  of  the  Court  of 
Appeals.  Meantime  (1822)  he  was  elected  to  the  state  senate,  and 
although  he  was  the  youngest  member  of  that  body  he  took  a  leading 
part  in  its  deliberations,  greatly  distinguishing  himself.  While  yet  in 
tlie  senate  he  was  appointed  by  President  John  Quincy  Adams  United 
States  district  attorney  for  the  northern  district  of  New  York.  He 
remained  in  that  position  until  1830,  when  he  was  elected  a  represent- 
ative in  congress.  He  was  twice  successively  re-elected.  In  the  house 
he  Avas  one  of  the  most  conspicuous  men  of  the  day,  served  on  the 
judiciary  committee,  and  was  an  uncompromising  and  effective  sup- 
porter of  President  Jackson,  delivering  a  very  notable  speech  on  the 
currency  question  during  the  United  States  Bank  excitement.  In 
1834  Governor  Marcy  appointed  him  judge  of  the  fith  New  York  cir- 
cuit, and  the  appointment  was  confirmed  by  the  state  senate,  but,  at 
the  personal  solicitation  of  the  president,  he  declined  the  place  and 
continued  in  the  house  of  representatives.  In  1836  he  was  appointed 
attorney-general  of  the  state  to  succeed  Greene  C.  Bronson.  He 
returned  to  his  legal  practice  at  the  end  of  his  term  in  1838.  Again 
chosen  to  congress  in  1842  he  resigned  in  1844  upon  being  elevated  by 
Governor  Wright  to  the  bench  of  the  Supreme  Court  as  successor  to 
Judge  Esek  Cowen.  He  occupied  that  seat  until  the  old  Supreme 
Court,  under  the  operation  of  the  new  constitution,  passed  out  of 


IIISIOKV     OK     IIIK    H1:N<   II     AM)    ItA  K    ol'     M .  W     \i>\l\<  2^)',) 

oxistiMicc,  iind  upon  the  it'lircmciil  of  (Miicf-.I  iisticc  Hioiisoii  in  lH-17 
he  .siKM'eedt'd  (o  liis  odice,  lillin<j:  the  <'hief-justi('esliin  iiiiiil  .I;iim:iry  I, 
KS4H.  Tims  lie  was  tho  last  cliiid'-justicc  of  fli»>  state  in  tlic  distin- 
n^iiishcd  line  wliicli  b<'«i;aii  with  tiic  selection  oi"  .loiin  .Fay,  iNfay  8,  1777. 
Aftor  leaving  the  bench  .lii(lj;e  lieardsley  lesunied  the  private  i)ra('tie<? 
of  the  profession,  in  which  he  continued  uninterrui)tedly  until  his 
ch'ath.  During  this  period  of  twelve  years  lie  acted  as  counsel  in  many 
of  the  most  important  cases  in  the  Court  of  Ap])eals.  He  still  retained 
his  interest  and  inlluence  in  })()litics,  and  in  the  democi-atic  national 
convention  of  18.")()  was  instrumental  in  hriniiini;  about  the  nomination 
of  l^uchanan  for  the  i)residency. 

Althoufi'li  .hidgi'  Beardsley's  career  on  the  bench  was  comparatively 
brief,  and  his  life  was  lar<i;ely  devoted  to  political  affairs  and  the  rou- 
tine duties  of  public  prosecutor,  he  ranks  with  the  most  celebrated  of 
New  York  jurists.     Judge  Rufus  W.  Peckham  said  of  him  : 

Judge  Beardsley  knew  men  and  the  springs  of  human  action  ;  he  was  able  to 
inspire  them  with  a  portion  of  tlie  same  spirit  that  fired  his  own  bosom.  He  had 
really  more  of  the  General  Jackson  in  him  than  any  of  the  public  men  tliat  sur- 
vived the  old  hero.     Eminent  as  he  was  in  ability,  he  was  not  less  distinguished  for 

the  high-toned  manly  integrity  that  characterized  every  act  of  his  life The 

late  Joshua  A.  Spencer,  who  had  practiced  law  in  the  same  town  with  him  for  a 
quarter  of  a  century,  in  alluding  to  the  chivalrous  integrity  of  Judge  Beardsley, 
observed  to  me  that  he  never  felt  called  upon  to  examine  with  much  care  bills  of 
exception  or  amendment  from  him,  as  he  knew  they  were  always  prepared  with 
a  scrupulous  regard  for  the  truth  of  the  case,  as  it  occm*red  on  the  trial. 


|EEBE,  WILLIAM  R.  (born  in  Chatham,  Columbia  county, 
New  York,  in  1816  ;  killed  on  the  railroad  at  Evona,  New 
Jersey,  May  22, 1884),  studied  law  in  the  office  of  Burr  &  Ben- 
edict, New  I'ork  City,  and  became  a  partner  in  that  firm 
upon  his  admission  to  the  bar.  In  1845  he  formed  a  business  associa- 
tion with  Charles  Donohue.  The  firm  was  styled,  successively,  Beebe, 
Donohue  &  Cochran,  Beebe,  Donohue  &  Betts,  and  Beebe,  Dean  & 
Donohue.  Mr.  Beebe  was  the  first  person  to  hold  office  as  city  judge 
after  the  creation  of  the  court  in  1850,  and  the  first  city  judge  elected 
to  the  Court  of  Sessions.  He  \vas  on  the  bench  for  four  years  from 
1851.  Retiring,  he  devoted  himself  for  the  rest  of  his  life  almost  ex- 
clusively to  admiralty  cases. 


ENEDICT,  ERASTUS  CORNELIUS  (born  in  Branford,  Con- 
necticut, March  19, 18()0  ;  died  in  New  Y'ork  City,  October  22, 
18S0),  was  the  son  of  Reverend  Joel  T.  Benedict,  who,  com- 
ing to  New  Y'^ork  from  Connecticut,  filled  pastorates  at  New^ 
Windsor,  Franklin  and  Chatham.  Erastus,  graduating  at  Williams 
College  in  1821,  was  engaged  in  educational  work  for  three  years  after, 


260  HISTORY    OF   THE   BENCH   AND   BAR   OF   NEW   YORK 

meantime  studying  law.  He  was  admitted  to  tlie  bar  in  1824,  and 
soon  after  was  appointed  to  a  deputy  clerkship  in  the  United  States 
District  Court  for  southern  New  York.  In  this  jDOsition  he  became 
especially  interested  in  admiralty  law,  which  led  him,  after  engaging 
in  active  practice,  to  give  his  attention  mainly  to  that  branch  of  his 
profession  ;  and  throughout  his  life  he  stood  at  the  front  rank  of  ad- 
miralty lawyers.  His  iirm,  originally  Burr  &  Benedict,  afterward 
Burr,  Benedict  &  Beebe,  early  took  a  leading  place  among  the  law 
firms  of  the  city. 

Mr.  Benedict's  career  was  active  and  useful  in  varied  respects.  He 
delivered  many  addresses  on  scientific  and  historical  subjects,  and  pub- 
lished, among  other  writings,  "  American  Admiralty  "  (1850),  "  A  Run 
through  Europe"  (1860),  and  "The  Hymn  of  Hildebert  and  Other 
Mediaeval  Hymns"  (1861).  He  was  for  thirteen  years  a  member  of  the 
board  of  education,  and  its  president  until  his  resignation  in  1863; 
served  in  the  assembly  in  1848  and  1864,  and  in  the  senate  in  1872 ; 
was  a  trustee  of  Williams  College  and  regent  of  the  University  of  the 
State  of  New  York,  becoming  chancellor  of  the  latter  institution  in 
1878 ;  was  governor  of  the  New  York  State  Woman's  Hospital  from 
its  incorporation  and  took  a  warm  interest  in  charitable  work  ;  and 
was  a  prominent  member  of  the  New  York  Historical  Society  and  the 
Union  League  Club. 

jENSON,  EGBERT  (born  in  New  York  City,  June  21,  1746; 
died  in  Jamaica,  Long  Island,  August  24, 1833),  was  an  active 
patriot  of  the  Revolution  and  one  of  the  most  eminent  Ameri- 
can jurists  of  his  time,  distinguished  equally  for  eloquence  at 
the  bar  and  for  legal  learning.  He  was  graduated  at  Kings  College  in 
1765  and  soon  became  prominent  in  public  affairs.  He  was  a  member 
of  the  revolutionary  committee  of  public  safety,  and  upon  the  organi- 
zation of  the  state  government  in  1777  was  chosen 
the  first  attorney-general  (serving  until  1789),  and 
was  elected  the  same  year  to  the  first  state  legis- 
lature. He  was  one  of  the  foremost  champions  of  the  federal  consti- 
tution, and  led  the  legislature  in  1788  in  the  advocacy  of  its  accep- 
tance. He  was  a  member  of  the  continental  congress  from  1784  to 
1788  and  took  an  active  part  in  the  deliberations  of  the  1st  and  2d 
congresses  of  the  United  States.  From  1794  to  1802  he  was  judge  of 
the  Supreme  Court  of  the  State  of  New  York,  and  subsequently  for  a 
time  sat  on  the  federal  bench  as  a  circuit  judge.  He  was  a  regent  of 
the  New  York  University  from  1789  to  1802,  and  in  1808  he  received  the 
degree  of  LL.D.  from  Harvard  and  in  1811  from  Dartmouth.  In  1813 
he  was  again  elected  to  congress,  retiring  in  1815.  He  was  the  first 
president  of  the  New  York  Historical  Society.  As  an  author,  he  wrote 
"Vindication  of  the  Captors  of  Major  Andre"  (1817),  and  "Memoir  on 
Dutch  Names  of  Places"  (1835). 


^i^^f^iJ^ 


IIISIOIJY    OK    I'MK    BKNCII    AND    HA  It    OF    NKW    VOIIK 

I'VPrs,  SAMIKL  llOSSITKR.     Src  Vol.  ii.    " 


2(51 


^IF/ITS,  WILLIAM  (horn  in  Borhscrrove,  St.  Croix,  West  Indies, 
.Iiinuary  28,  1802;  died  in  Jamaica,  Long  Island,  July  .0, 
ISS-i),  was  Graduated  from  Columbia  College  in  1820,  and 
studied  law  with  David  B.  Ogden  and  aftei-wai'd  with  his 
fatlu>r-in-law,  Beverley  liobinson.  lie  was  a  trustee  of  Columbia  Col- 
lege and  of  the  College  of  Physicians  and  Surgeons ;  was  a  professor 
of  law  in  Columbia  (1848-54),  and  served  some  of  the  old  and  large 
corporations  of  New  York  as  their  counsel. 


II)  WELL,  MARSHALL  S.,  was  born  in  New  England  in  1798 
and  died  in  New  York  City,  October  24, 1872.  Ilis  early  life 
was  spent  in  Canada,  where,  while  still  a  young  man,  he  had 
not  only  won  prominence  in  the  i)rofession  of  the  law,  but 
had  entered  political  life  and  gained  distinction  in  the  Canadian 
parliament.  He  was  i-eturned  several  times  from  Kingston  and 
Toronto,  and  for  two  terms  was  speaker  of  the  house.  His  attitude  as 
leader  of  the  liberal  party  became  so  jironounced  during  the  rebellion 
of  18H7  that  the  government  ordered  him  to  leave  Canada.  Removing 
to  New  Y'oi'k  City  he  renewed  the  practice  of  law,  appearing  almost 
exclusively  in  the  higher  courts,  and  he  was  soon  recognized  as  among 
the  ablest  men  at  the  bar.  At  the  time  of  his  death  he  was  at  the 
head  of  one  of  the  oldest  savings  banks  of  the  city,  a  director  in  the 
American  Bible  Society,  and  a  prominent  member  of  the  New  York 
Historical  Society.  One  of  the  last  addresses  he  made  was  before  the 
latter  society  Just  previously  to  his  death. 


IRDSEY^E,  VICTORY"  (born  in  Cornwall,  Connecticut,  Decem- 
ber 25, 1782  ;  died  inPompey,  New  Y'ork,  September  17, 1853), 
as  the  son  of  Reverend  Nathan  Birdseye,  a  prominent  con- 
gregational divine,  who  lived  to  the  remarkable  age  of  one 
hundred  and  three  and  one-half  years.  He  was  graduated  from  Williams 
College  in  1804,  studied  law  with  Gideon  Tomlinson  and  Cornelius 
Allen,  of  Lansingburgh,  New  Y^'ork,  and  was  admitted  as  an  attorney 
in  1S07  and  as  counsel  in  1810.  He  commenced  practice  in  Pompey, 
New  Y'ork.  He  held  numerous  public  offices :  was  a  justice  of  the 
peace  for  four  years,  commissioner  of  insolvency  (1811),  member  of 
the  14th  and  27th  congresses,  delegate  to  the  constitutional  con- 
vention of  1821,  member  of  the  assembly  in  1823,  1838  and  1840, 
member  of  the  state  senate  in  1827  and  1828,  taking  a  prominent  part 


262  HISTORY    OF   THE   BENCH   AND   BAR   OF   NEW   YORK 

in  the  perfecting  and  enactment  of  the  revised  statutes,  master  of 
chancery  from  1818  to  1822,  and  district-attorney  of  Onondaga  county 
for  about  fifteen  years  from  1818.  In  1830  he  was  a  special  counsel,  in 
the  place  of  John  C.  Spencer,  resigned,  to  prosecute  the  persons  ac- 
cused of  the  abduction  and  murder  of  William  Morgan.  Of  the  four 
thousand  judgments  rendered  by  Mr.  Birdseye  as  a  justice  of  tlie  peace, 
only  four  were  subsequently  reviewed  in  the  higher  courts,  and  all  of 
these  four  were  affirmed.  It  is  also  noteworthy  that  as  district- 
attorney  of  Onondaga  county  for  fifteen  years  he  drafted  and  tried 
every  indictment  found,  and  not  a  single  one  of  these  indictments  was 
quashed  or  found  defective  on  demurrer. 


IXBY,  JOHN  MUNSON  (born  in  Fairfield,  Connecticut, 
February,  1800  ;  died  in  New  York  City,  November  22, 1876), 
after  receiving  his  preparation  for  the  bar  at  Wilkesbarre, 
Pennsylvania,  came  to  New  York  and  was  engaged  in  suc- 
cessful practice  until  1849,  when  he  retired.  He  invested  at  an  early 
period  in  city  real  estate  and  left  a  fortune  estimated  at  $1,800,000. 
He  married  a  cousin  of  Edgar  Allan  Poe,  and  was  the  author  of  two 
novels  under  the  pseudonym  of  E.  Grayson. 


ILATCHFORD,  RICHARD  MILFORD  (born  in  Stratford, 
Connecticut,  April  23,  1798  ;  died  in  Newport,  Rhode  Island, 
September  3,  1875),  was  graduated  at  Union  College  in  1818, 
admitted  to  the  bar,  and  entered  upon  professional  practice 
in  New  York,  where  he  made  rajjid  progress  to  distinction.  He  be- 
came a  specialist  in  banking  law,  and  was  successively  financial  agent 
and  counsel  for  the  Bank  of  England  and  the  Bank  of  the  United 
States,  settling  the  affairs  between  the  two  institutions  upon  the  ex- 
piration of  the  latter's  charter  in  1836.  A  personal  friend  of  Daniel 
Webster,  he  was  one  of  the  executors  of  his  will.  For  many  years  he 
was  one  of  the  very  prominent  and  well-known  citizens  of  New  York. 
He  was  one  of  the  leading  members  of  the  union  defence  committee  at 
the  outbreak  of  the  war,  and,  by  President  Lincoln's  appointment,  was 
associated  with  John  A.  Dix  and  George  Opdyke  on  the  committee 
having  in  charge  the  disbursement  of  appropriations  for  obtaining 
soldiers  for  the  army.  He  was  minister-resident  to  the  States  of  the 
Church  in  1862  and  1863,  commissioner  of  Central  Park  from  1859  to 
1870,  and  afterward  a  member  of  the  commission  of  public  parks. 


LATCHFORD,  SAMUEL  (born  in  New  York  City,  March  9, 
1820;  died  in  Newport,  Rhode  Island,  July  7,  1893),  was  a 
son  of  Honorable  Richard  M.  Blatchford  and  Julia  Ann  Mum- 
ford,  a  noted  belle  in  Knickerbocker  society.     Though  his 
father  was  a  man  of  wealtli,  he  manifested  from  boyhood  a  strong  pref- 


IIISTOIJY    OK    TlIK    IU:N(II     AND    HAK    OK    N  K\V     VollK  203 

('i'(>n('('  foi' active  pursuits,  and  lliioii^lioiil  lilt'  ln' was  a  hard  woikniii 
liis  piolVssioii  and  in  his  judicial  (Miiployincnts.  Il«'  was  graduated 
IVoni  (yolunibia  Collego  in  is;57,  and  in  is;{<)  became  private  secretaiy  to 
(iovernor  Seward.  lie  was  also  niilitai-y  secretary  on  the  goveriioi-'s 
stall".  ])urin,<i-  this  period  lie  studietl  law.  He  was  admitted  to  the  bar 
in  1842.  In  1845,  liaviiiii;  been  admitted  a  counsellor  of  the  Supreme 
Court,  he  removed  to  Auburn  and  entered  into  coj)artnership  with  W. 
II.  Seward  and  Christo])liei'  Morgan,  almost  immediately  taking  a  high 
rank  at  the  bar  of  the  midland  circuits.  He  manifested  a  lively  in- 
terest in  tlie  exciting  politics  of  the  Tyler  and  Van  Buren  ])eriod,  but 
liaving  little  inclination  for  active  i)olitical  i)ursuits  he  avoided  joining 
his  personal  fortunes  to  party  concerns.  Desirous  of  enlarging  liis 
professional  field  he  returned  to  New  York  City  in  1854  and  established, 
with  Clarence  A.  Seward  and  Burr  W.  Griswold,  the  firm  of  Blatch- 
ford,  Seward  &  Griswold,  with  which  his  father  also  was  indentified  as 
the  jurisconsult  of  the  office.  This  firm  soon  became  conspicuous  in 
commercial  and  legal  circles,  taking  a  leading  place  in  practice  before 
the  I'nited  States  District  and  Circuit  courts.  The  experience  thus 
obtained  by  Mr.  Blatchford  in  the  continuous  exercise  of  professional 
duties  of  the  first  importance  gave  him  a  peculiar  training  for  the 
judicial  functions  which  he  was  destined  to  discharge  with  such  dis- 
tinguished ability. 

In  ISIay,  ISO 7,  he  was  appointed  district  judge  of  the  United  States 
Court  for  the  southern  district  of  New  York  as  successor  to  the  re- 
nowned Samuel  R.  Betts.  He  fully  maintained  the  standards  of  that 
court  which  had  been  established  by  his  illustrious  predecessor.  In 
all  the  intricate  departments  of  jurisprudence  with  which  he  had  to 
deal— marine  law,  marine  insurance,  patent  law,  admiralty  law^,  inter- 
state law,  etc. — his  decisions  enjoy  the  highest  authority  and  display 
the  most  perfect  understanding  of  the  principles  involved.  From  the 
District  Court  he  was  promoted  in  1878  to  be  federal  circuit  judge,  and 
in  March,  1882,  he  was  appointed  by  President  Arthur  associate-justice 
of  the  Supreme  Court  of  the  United  States, 

Judge  Blatch ford's  career  on  the  local  federal  bench  won  for  him 
an  enduring  reputation  as  one  of  the  greatest,  if  not  the  very  greatest, 
of  American  admiralty  judges.  Among  the  celebrated  arguments 
heard  by  him  were  those  on  the  letters  patent  for  insulating  telegraph 
and  cable  wires  with  gutta-percha,  and  as  to  whether  a  common  carrier 
knowdngly  carrying  an  infringing  patent  article  for  purposes  of  ulti- 
mate sale  could  be  made  liable  as  a  wrong-doer.  He  settled  the  legal 
status  of  the  proposed  Brooklyn  Bridge  as  a  structure  to  be  built  over 
navigable  waters.  On  the  Supreme  Court  bench  the  most  elaborate 
opinion  rendered  by  him  was  in  the  case  of  the  Pennsylvania  Railroad . 
Company  ts.  Miller,  holding  that  the  company  was  bound  by  a  new 
provision  of  a  new  state  constitution  that  imposed  fresh  burdens  not 
contemplated  by  its  charter,  and  that  a  company's  right  of  exemption 


264       HISTOEY  OF  THE  BENCH  AND  BAR  OF  NEW  YORK 

from  future  legislation,  in  order  to  hold  good,  must  be  expressed  in 
the  original  charter. 

Judge  Blatchford,  during  his  long  service  on  the  bench  in  New 
York,  enjoyed  the  highest  respect,  and  indeed  the  aifection,  of  the 
entire  profession.  He  was  sometimes  called  the  Chesterfield  of  the 
bench,  because  of  the  exceeding  grace  and  courtesy  of  his  judicial 
bearing  and  his  scrupulous  observance  of  all  the  amenities. 


|LEECKER,  HARMANUS  (born  in  Albany,  New  York,  Octo- 
ber 19, 1779;  died  there  July  19, 1849),  was  admitted  to  the  bar 
in  his  native  city  and  for  many  years  practiced  law  there  in 
partnership  with  Theodore  Sedgwick.  He  served  in  congress 
from  1811  to  1813  as  a  federalist  and  took  a  strong  stand  in  opposition 
to  the  war  of  1812.  He  was  charge  (V affaires  at  the  Hague  from  1889 
to  1842.  He  held  the  office  of  regent  of  the  University  of  the  State  of 
New  York  from  1822  to  1834. 


|LUNT,  JOSEPH  (born  in  Newburyport,  Massachusetts,  Feb- 
ruary, 1792  ;  died  in  New  York  City,  June  16,  1860),  was  a 
son  of  Edmund  March  Blunt,  a  celebrated  nautical  author 
and  publisher.  He  was  a  prominent  whig  and  protectionist 
and  one  of  the  first  organizers  of  the  republican  party,  being  the  au- 
thor of  the  original  resolutions  of  the  state  convention  at  Saratoga  in 
1854.  He  was  appointed  commissioner  to  China  by  President  Fillmore, 
but  declined.  President  Lincoln  appointed  him  United  States  district 
attorney  for  New  York  shortly  before  his  death.  He  was  a  prominent 
writer  on  political  and  historical  subjects. 


fOARDMAN,  ANDREW  (born  in  Lancashire,  England,  in 
1813  ;  died  in  New  York  City,  May  11,  1881),  came  to  this 
(country  in  his  youth  and  entered  upon  the  practice  of  medi- 
cine, which  he  abandoned  for  the  law.  He  was  for  many 
years  associated  with  Jesse  W.  Benedict  in  the  firm  of  Benedict  & 
Boardman,  which  afterward  was  changed  to  Boardman  &  Boardman. 
His  practice  was  chiefly  in  will  cases,  and  he  had  a  large  business. 


fOARDMAN,  DOUGLAS  (born  in  Covert,  Seneca  county.  New 
York,  October  31,  1822  ;  died  in  Sheldrake,  New  York,  Sep- 
tember 5, 1891),  was  graduated  from  Yale  College  in  1842,  ad- 
mitted to  the  bar  in  1845,  and  settled  in  what  was  then  the  vil- 
lage of  Ithaca,  where  he  was  soon  in  the  enjoyment  of  a  very  successful 


IIIS'I'OKV    OF     Illi:    IJKNCII     AM)    I!  A  i:    OF    Ni;\V    VolIK 


L'CJf) 


piiiclicr.  lie  \v:is  t'lecd'd  district  attorney  of  'roni|>isiii.s  coiinly  in 
ISIS,  and  from  l^VJ  to  1855  was  county  judge.  In  ISC.O  lie  Ix'canie  a 
member  of  the  Supreme  (/Oiirt,  and  he  sat  on  the  henc^li  of  that  tiihu- 
nal  until  ISS7,  wiien  he  refused  a  riMiominalion.  lie  then  accepted  the 
position  of  dean  of  the  law  sciiool  of  Cornell  University,  which  he 
tilled  until  his  death. 


(XJARDTS,    ROBERT   (born   in    1771  ;    died   in   New   York 

City,  Sei)teniber  12,  1S41),  was  one  of  the  eminent  lawyers  ol" 

the  first  part  of  this  century.    He  practiced  in  New  York  City. 

lie  was  a  colonel  of  infantry  in  the  war  of  1812,  and  was  a 

member  of  the  state  senate. 


fOSWORTH,  JOSEPH  SOLLACE  (born  March  27,  1807, 
at  Cortland,  New  York ;  died  in  New  York  City,  May  21 
1884),  was  graduated  from  Hamilton  College  with  honor  in 
182f),  admitted  to  the  bar  in  1880,  and  practiced  in  Bingham- 
ton  until  1830,  during  part  of  which  time  he  was  district-attorney  of 
Broome  county.  He  was  also  an  examiner  and  master  in  chancery  by 
the  appointment  of  Governor  Marcy.  Removing  to  New  York  City 
in  1836  he  soon  became  actively  and  prominently  engaged  in  the 
courts.  He  was  elected  to  the  assembly  in  1843  and  was  for  several 
years  a  member  of  the  city  board  of  education.  He  was  elected  judge  of 
the  Superior  Court  of  the  City  of  New  York  in  November,  ISol,  and 
re-elected  in  1857.  From  18r)8  until  his  retirement  in  1864  he  was 
chief-justice  of  the  conrt,  and  during  the  same  period  he  was  its  re- 
porter, publishing  several  volumes  of  Superior  Court  reports  known 
as  Bosworth's  Reports.  In  1863  he  was  defeated  for  re-election  by  the 
narrow  margin  of  26  votes,  John  H.  McCunn  becoming  his  successor. 
Upon  leaving  the  bench  he  was  aijpointed  a  police  commissioner  ;  in 
1869  he  was  made  president  of  the  police  board.  In  1872  he  retired 
from  public  life,  and  from  that  time  until  his  death  he  acted  as  referee 
in  civil  cases,  generally  by  selection  of  the  litigants,  and  in  that  ca- 
pacity decided  more  cases  than  any  other  member  of  the  profession. 

He  was  one  of  the  founders  of  the  Association  of  the  Bar.  While 
in  active  practice  Murray  Hoffman  and  John  Graliam  were  his  part- 
ners, and  his  associates  on  the  bench  were  Judges  Duer,  Oakley,  and 
Woodruff.  He  was  an  ideal  judge,  highly  conscientious,  pure,  and 
always  animated  by  a  strict  sense  of  duty  to  the  public. 


OWDOIN,    GEORGE    R.    J.     (born    in    November,  1S09 ; 
died   in   London,    England,   March    14,   1870),   was   gradu- 
ated West  Point  and  was  on  General  Winfield  Scott's  staff 
as  aide-de-camp  for  several  years.     He  afterward  practiced 
law  in  the  City  of  New  Y^ork,  ranking  high  in  the  profession  and  enjoy- 


266  HISTORY    OF   THE   BENCH   AND    BAK   OF   NEW   YORK 

ing  a  lucrative  business,  as  the  head  of  the  firm,  Bowdoin,  Larocqne  & 
Barlow,  his  associates  being  Joseph  Larocque  and  S.  L.  M.  Barlow. 


iOWMAN,  FRANCIS  CASWELL  (born  in  New  York  City, 
December  26,  18S1 ;  died  there  October  29,  1884),  was  grad- 
uated at  Brown  University  in  1852  and  engaged  in  the  prac- 
tice of  the  law  in  New  York.  He  led  a  successful  profes- 
sional career,  but  gave  much  of  his  attention  to  literary  work  and 
music.  He  was  an  accomplished  writer  on  musical  subjects.  During 
the  war  he  was  instrumental  in  the  organization  of  the  United  States 
sanitary  commission  at  AVashington. 


RADFORD,  ALEXANDER  WARFIELD  (born  in  Albany, 
New  York,  in  1815 ;  died  in  New  York  City  November  5, 
1867),  was  a  son  of  John  M.  Bradford,  D.D.,  of  Albany. 
He  was  a  graduate  of  Union  College  (1832),  and  after  his  ad- 
mission to  the  bar  advanced  rapidly  in  reputation  for  ability  and  learn- 
ing. He  served  three  terms  as  surrogate,  was  a  member  of  the  com- 
mission to  codify  the  laws  of  the  state,  and  was  prominently  connected 
with  many  cases  of  importance.  His  decisions  as  surrogate  in  will 
contests  were  esj)ecially  noteworthy.  He  published  four  volumes  of 
"Reports  of  Surrogates'  Cases"  and  six  volumes  of  "Bradford's 
Reports  "  (a  standard  authority),  edited  a  work  on  "  American  Antiq- 
uities," and  was  associated  with  Doctor  Anthon  in  editing  the  Protestant 
Churchman. 


^RADY,  JAMES  TOPHAM  (born  in  New  York  City,  April  9, 
1815  ;  died  there  February  9,  1869),  was  the  second  son  of 
Thomas  S.  Brady,'  a  lawyer  of  ability,  under  whose  direction 
he  received  his  education  and  his  preparation  for  the  legal 
profession.  At  the  age  of  twenty-one,  having  been  admitted  to  the 
bar,  he  began  practice  on  his  own  account  in  New  York.  Almost  im- 
mediately he  became  conspicuous  as  an  advocate.  His  services  were 
engaged  in  behalf  of  Sarah  Coppin,  an  orphaned  English  girl,  who, 
upon  her  arrival  in  New  York,  had  been  robbed,  and,  as  a  destitute 
person,  barred  out  by  the  authorities.  The  brilliant  ability  with  which 
he  advocated  her  cause,  obtaining  her  release,  attracted  great  attention. 
He  was  speedily  recognized  as  one  of  the  foremost  criminal  lawyers  of 
the  times,  and  was  constantly  engaged  as  counsel  in  the  most  import- 
ant cases.     He  united  to  magnetic  eloquence  a  remarkable  skill  and 

'  Thomas  S.  Brady  was  born  in  Ireland,  was  admitted  three  sons.    Tlie  eldest,  Thomas,  was  fitted  for  the  law, 

to  the  New  York  bar  in  1828,  and  was  a  justice  of  the  but  being  appointed  into  the  United    States    marine 

peace  and  an  alderman.    He  was  a  master  of  langnaijcs,  corps,  he  lived  and  died  an  officer  of  the  navy, 
and  Cardinal  Mct'losl<ey  was  one  of  his  pupils.     He  had 


iiisi()i;y  <»f   riii';  iniNcii  and  n\\:  ok  ni;\v   V(ti:K  'J(57 

fiict  in  flic  inaiiiii^riiKMil  of  lijs  cnscs,  micxccllt'd  cjipMcitics  in  the  cross- 
cxMinination  oi"  witnesses, juul  the  utmost  lucidity  in  inarsliallin^  facts, 
lie  was  I  litis  considered  almost  irresistible  helorea  jui'y.  Hut  although 
liis  reputation  was  essentially  as  a  jury  lawyer  in  the  li'ial  of  criminal 
actions,  he  was  also  one  of  the  eminent  leaders  of  the  bar  in  civil  suits, 
"winning-  vei-dicts  from  judi;es  and  juioi's  alike  in  great  pat(!nt  cases, 
like  that  of  Goodyear  t\s.  Day;  cases  involving  (luestions  of  medical 
jurisprudence,  like  the  Allaire  and  Parish  will  cases,  and  tlie  moial 
insanity  plea  in  the  case  of  the  forger  Huntington  or  the  homicide 
Cole;  divorce  cases,  like  that  of  Mrs.  Edwin  Fori'est." 

He  was  appointed  district-attorney  of  New  York  in  184M,  serving 
for  a  brief  ix'iiod,  and  aftei'ward  was  corporation  counsel.  He  refused 
all  political  preferment  exce[)t  in  the  line  of  his  profession,  but  in  1860 
consented  to  stand  as  candidate  for  governor  on  the  Breckinridge  dem- 
ocratic ticket.  Though  he  was  an  intense  state-rights  man  before  the 
war,  he  gave  prompt  and  hearty  support  to  the  union  cause  and  the  war 
measures  of  tlie  federal  government.  He  was  a  member  of  the  com- 
mission appointed  to  inquire  into  the  administration  of  the  department 
of  the  gulf  under  (jenerals  Butler  and  Banks.  He  had  refined  literary 
tastes,  contributed  to  the  old  Knickerhoeker  Magazine,  and  ])ublished 
a  story,  "  A  Christmas  Dream."  He  was  one  of  the  most  generous  sup- 
porters of  the  library  of  the  New  York  Law  Institute. 


RADY,  JOHN  RIKER  (born  in  New  Y^ork  City  in  1821  ; 
died  there  March  1(5,  1891),  was  the  younger  brother  of  the 
X^receding.  Admitted  to  the  bar  in  1842,  he  went  into  part- 
nership with  his  brother  in  the  firm  of  Brady,  Maurice  & 
Brady,  which  became  Brady  &  Brady  upon  the  retirement  of  Mr. 
Maurice.  He  was  elected  judge  of  the  Court  of  Common  Pleas  in  1855, 
and  until  his  death,  a  period  of  thirty-live  years,  lie  served  uninterrupt- 
edly on  the  bench.  He  was  re-elected  to  the  Common  Pleas  judgeship 
in  1869,  receiving  the  support  of  all  political  parties,  although  at  that 
time  non-partisan  judicial  nominations  were  not  much  in  vogue.  Before 
the  expiration  of  his  second  term  he  was  elected  a  justice  of  the  Supreme 
Court,  and  he  was  re-elected  in  1S77,  again  receiving  a  unanimous  vote. 
On  the  Supreme  bench  he  became  presiding  justice  of  the  New  Y^ork 
general  term. 

As  a  judge  for  so  many  years  of  the  New  Y'ork  bench,  John  R. 
Brady  has  left  an  illustrious  name.  His  decisions  are  uniformly 
marked  by  a  high  ability.  He  was  of  an  impulsive  and  very  genial 
temperament,  differing  quite  radically  from  his  brother,  who  was  self- 
controlled.    He  married  a  sister  of  the  wife  of  Judge  Charles  P.  Dalv. 


268  HISTORY  OF  the  bp:nch  and  bar  of  kew  york 


KONSON,  GREENE  CARRIER  (born  in  Oneida,  New  York, 
in  1789;  died  in  Saratoga,  New  York,  Septembers,  1863),  estab- 
lished himself  in  Utica  and  became  one  of  the  leading  lawyers 
of  that  city  and  section.  He  was  elected  surrogate  of  Oneida 
county  in  1819,  member  of  the  assembly  in  1822,  attorney-general  in 
1829  (serving  seven  years),  and  a  puisne  judge  of  the  Supreme  Court 
in  1836.  In  1845  he  was  elevated  to  the  chief-justiceship  of  the  Su- 
preme Court,  and  in  1847  he  was  chosen  one  of  the  original  members 
of  the  new  Court  of  Appeals.  Retiring  from  the  bench  in  1851  he  took 
up  his  residence  in  New  York,  where,  having  suffered  several  pecun- 
iary losses,  he  accepted  the  position  of  collector  of  the  port  (1853). 
From  this  place  he  was  removed  in  1854.  He  was  the  "hard-shell" 
democratic  candidate  for  governor  in  1855.  From  1860  to  1863  he  was 
corporation  counsel. 

The  Court  of  Appeals,  in  a  minute  adopted  on  the  occasion  of 
Judge  Bronson's  death,  paid  him  the  following  tribute : 

Especially  in  the  department  of  judicial  duty  he  was  justly  pre-eminent.  His 
opinions,  both  in  the  Supreme  Court  and  in  this  coui't,  are  models  of  judicial  excel- 
lence. In  conciseness  and  perspicuity  of  expression,  in  terseness  and  directness 
of  style,  in  compactness  and  force  of  logic,  and  in  sturdy  vigor  of  intellect,  they  are 
unsurpassed.  Careful  and  deliberate  in  the  formation  of  his  conclusions,  he  was, 
from  the  very  strength  of  his  convictions,  tenacious  and  confident  of  their  correct- 
ness and  courageous  and  resolute  in  their  expression.  Firm  in  integrity  of  purpose 
and  action,  bold  in  the  denunciation  and  exposure  of  fraud,  he  was  at  the  same 
time  gentle  and  genial  in  all  the  relations  of  friendship  and  private  life. 


ejRONSON,  ISAAC  H.  (born  in  Rutland,  New  York,  October 
16,  1802 ;  died  in  Palatka,  Florida,  August  13,  1855),  was  ad- 
mitted to  the  practice  of  the  law  in  1822  and  took  a  promi- 
nent place  at  the  bar  in  Watertown.  He  was  elected  to  con- 
gress as  a  democrat  in  1836,  but  was  defeated  in  1838.  He  was  then 
appointed  judge  of  the  5th  judicial  district  of  New  York,  which  posi- 
tion he  left  to  become  territorial  judge  of  Florida,  and  later  (1845) 
United  States  district  judge  for  the  northern  district  of  the  State  of 
Florida. 


ROOKE,  CHARLES  WALLACE  (born  in  Philadelphia, 
April  10,  1836 ;  died  in  New  Brighton,  Staten  Island,  Feb- 
ruary 7,  1897),  was  the  son  of  Alexander  Hamilton  Brooke,  a 
sea  captain  in  the  China  trade.     He  was  graduated  from  the 


Uuivei-sity  of  Pennsylvania,  studied  law  under  Charles  E.  Lex,  and 
was  admitted  to  the  Philadelphia  bar  in  1858.  His  eloquence  and 
general  legal  ability  won  for  him  prompt  recognition,  and  at  the  age 
of  twenty-four  he  was  already  classed  with  Daniel  Dougherty,  Benja- 
min H.  Brewster,  and  other  leaders  of  the  profession.      During  his 


IIIsroUY    OK    IIIK    UK.NCII    AM)    HAK    OK    NKW    YOKK  -JiV.) 

i(>si(l('iic('  ill  lMiil;i(l('li)lii;i  he  was  comiscl  in  nimicroiis  cclfhialctl 
ciiiiiiiial  cases,  lie  was  a  (Ictiiocratic  caiididafc  for  (lisliict-alloiiK'y 
and  connicss.  but  owiii;^'  lo  the  lar^c  prcpoiKlcraiicc  ol"  the  rrpiihlicaii 
party  in  IMiiladclpliia  was  delViitcd.  lie  came  to  New  Voik  in  IsTl, 
and  with  .lolm  H.  Fellows  and  .Ind^c  (larvin  ()r<^ani/ed  the  law  lirni  ol" 
(iarvin,  Fellows  »S:  Hi-ooke.  lie  afterward  was  associated  for  a  time 
with  Doctor  W.  J.  O'Sullivan,  the  niedico-le^al  exi)ert.  At  the  New 
York  bar  Mr.  Brooke  ranked  with  the  foremost  of  ciiniinal  lawyers,  and 
in  his  last  years  he  was  constantly  before  the  public  in  cases  of  coin- 
mandius  interest. 


irjOUGfTTON,  SxVMPSON  SHELTON,  was  commissioned 
attorney -general  of  the  Province  of  New  York  at  the  same 
lime  that  Attwood  came  over  as  chief -Justice,  lie  was  a 
London  barrister,  a  member  of  the  Middle  Temj^le,  well  read 
in  tlie  law,  a  man  of  sense  and  integritj^,  and  did  not  share  the  odium 
incurred  by  Chief-Justice  Attwood.  He  gave  it  as  his  opinion  that  the 
addresses  against  the  lieutenant-governor  signed  by  Nicholas  Bayard, 
Rip  Van  Dam,  Philip  French,  and  Thomas  Wenham  were  not  crimi- 
nal, and  that  alderman  and  tavern-keeper  Hutchins  was  not  in  con- 
tempt for  refusing  to  give  them  up  as  traitors.  For  this  act  he  was 
suspended  from  office  after  a  grand  jury  had  been  induced  to  indict 
him  for  neglect  of  duty. 


^RYAN,  WILLIAM  G.  (born  in  Brighton,  England,  January 
18, 1822  ;  died  from  the  results  of  an  accident  in  Burlington, 
Iowa,  October  25,  1867),  was  the  son  of  William  Bryan,  who 
came  to  this  country  in  1830  and  settled  at  Le  Roy,  Genesee 
county.  New  York.  The  early  life  of  William  G.  was  passed  in  circum- 
stances of  deprivation.  He  was  admitted  to  the  bar  at  Batavia,  and  in 
ISiiO  formed  with  General  John  H.  Martindale  the  firm  of  Martindale  & 
Bryan.  Afterward  he  entered  into  partnership  with  Honorable  Seth 
Wakeman  in  the  firm  of  Wakeman  &  Bryan.  During  his  connection 
with  General  ISIartindale  he  was  counsel  for  the  Tonawanda  band  of 
Seneca  Indians  in  the  litigation  brought  against  them  by  the  Ogden 
Land  Company,  and  to  his  efforts  Avas  due  the  satisfactory  arrange- 
ment with  the  Indians  which  was  ultimately  obtained  from  the  United 
States  government.  He  was  an  active  and  earnest  democrat,  but  never 
held  public  office.  He  possessed  many  of  the  qualities  of  a  great  ad- 
vocate, and  his  untimely  death  was  much  lamented. 


270  HISTORY   OF   THE  BENCH   AND   BAK   OF   NEW   YORK 

URR,  AARON  (born  February  6,  1756,  at  Newark,  New  Jer- 
sey ;  died  at  Port  Richmond,  Staten  Island,  September  14, 
183C),  was  the  only  son  of  the  Reverend  Aaron  Burr  and 
Esther  Edwards,  his  wife,  who  was  the  daughter  of  Jonathan 
Edwards.'  The  year  after  Aaron's  birth  liis  father  died,  and  a  few 
months  later  both  his  mother  and  grandfather,  Jonathan  Edwards, 
also  died.  Burr  and  his  sister  Sarah  were  taken  by  their  uncle,  the 
Reverend  Timothy  Edwards,  to  his  home  at  Elizabeth,  New  Jersey,  and 
were  reared  by  liim.  Their  father  had  left  an  estate  amply  sufficient 
to  educate  them,  and  Tapping  Reeve  became  their  tutor.  Reeve  after- 
ward married  his  pupil,  Sarah  Burr,  and  became  chief-justice  of  the 
Supreme  Court  of  Connecticut.  When  Burr  was  thirteen  years  of  age 
he  entered  the  sophomore  class  at  Princeton,  and  he  graduated  at  six- 
teen. In  1773,  having  some  notion  of  studying  theology,  he  went  to  live  in 
Doctor  Bellamy's  family  in  Connecticut  for  that  purpose,  but  left  there 
the  following  year  because  after  a  study  of  the  scriptures  he  concluded 
to  reject  them  as  not  being  inspired.  He  remained  an  infidel  all  his 
life.  In  1774  he  went  to  live  with  his  brother-in-law,  Tapping  Reeve, 
at  Litchfield,  Connecticut,  and  commenced  the  study  of  law. 

While  there  he  heard  of  the  battle  of  Lexington,  and  in  1775  went 
to  Boston  and  joined  the  American  army.  From  that  place  he  went 
with  Arnold  in  the  expedition  against  Quebec.  When  at  Quebec  he 
bore  a  message  from  Arnold  to  Montgomery  at  Montreal,  a  very  peril- 
ous thing  to  do.  He  was  subsequently  appointed  aide  to  Montgomery 
and  took  part  in  the  assault  on  Quebec.  Having  some  difference  with 
Arnold  he  left  Quebec  and  proceeded  to  New  York  City,  where  he 
joined  Washington's  staff,  but  only  remained  with  Washington  six 
weeks,  withdrawing  to  join  Putnam's  staff.  In  1777  Washington  pro- 
moted him  to  the  rank  of  lieutenant-colonel.  His  regiment  was  sta- 
tioned near  the  village  of  Paramus,  New  Jersey,  and  it  was  there  he  first 
met  his  future  wife,  Mrs.  Prevost,  the  widow  of  an  English  colonel.  In 
1777-78  Burr  with  his  regiment  wintered  at  Valley  Forge,  and  at  the 
battle  of  Monmouth  he  commanded  a  brigade.  Between  Kingsbridge 
on  the  north  of  New  York  City  and  Dobbs  Ferry  there  had  been  since 

'  Aaron  Burr,  the  father  of  the  subject  of  this  sketch,  year.    He  wai  the  second  president  of  Princeton  and 

was  born  in  Connecticut  in  1716.    He  graduated  at  Yale  was  in  reality  its  founder,  as  the  first  president  was 

in  1735  and  was  licensed  to  preach.    When  twenty-two  merely  a  temporary  one  who  served  but  a  few  months. 

years  of  age  he  became  the  pastor  of  the  presbyterian  Burr's  mother,  Esther  Edwards,  was  the  daughter  of 

church  in  Newark,  New  Jersey.    He  also  took  in  pupils  Jonathan  Edwards,  and  was  noted  for  her  beauty  and 

for  instruction  in  the  classical  languages.  In  1748  he  be-  piety.   She  inherited  her  father's  intellectuality,  and  her 

came  presideutof  Princeton  College  and  was  such  when  son  no  doubt  owed  to  her  the  inheritance  of  a  great  part 

that  college  conferred  its  first  degree.    He  was  only  of  his  talents. 

thirty-two  years  old  at  that  time.    While  he  acted  as  the  Jonathan  Edwards,  Burr's  grandfather,  was  born  in 

president  of  Princeton  he  also  retained  his  church  and  Connecticut  in  1703.    He  graduated  from  Yale  in  1720. 

school  at  Newark  and  acted  in  the  dual  capacity  of  He  was  a  tutor  at  Yale  and  afterwards  became  pastor  of 

minister  and  president  for  eight  years.    When  he  was  a  church    at    Northampton,  Massachusetts.      He   was 

thirty-seven  years  old  he  married  (17.52)  Esther  Edwards,  chosen  to  succeed  his  son-in-law.  Burr,  as  president  of 

who  was  twenty-one  years  old  at  the  time.     By  this  Princeton  College,  but  died  in  1758,  the  next  year  after 

marriage  he  had  two  children,  one  a  daughter,  Sarah,  assuming  the  duties  of  his  office.    He  wrote  "  Freedom 

and  the  other  Aaron.     He  removed  his  family  from  of  the  Will,"  and  was  perhaps  the  greatest  uitellectual 

Newark  to  Princeton  in  17,50  and  died  the  following  force  of  the  pre- Revolution  period  of  American  history^ 


llIsroUY    OK 


AND    It.Vi:    (»!•     N  l.W 


the  Hritish  occupied  llircitya  n'i<;ii  of  terror  anion;;  the  iiili:il)itaiits. 
both  tory  and  wlii^,  bccauso  of  llu'  jobluMics  and  rajjiiics  of  bands 
of  freebooters,  who  i)lun(h'red  all  alike.  Hiirr  was  connnissioned 
by  \Vashin,«;ton  to  rid  this  territor>-  of  thest^  miscreants.  NVhen 
he  assumed  command  with  his  headiiuarters  at  White  IMaiiis,  liurr 
devised  and  put  in  t)perati()n  a  systematic;  scheme  for  the  i)rotection  of 
all  classes  of  the  inliabitants,  whether  tory  or  whi^.  Order  was  soon 
restored  and  outrages  ceased.  In  March,  1779,  on  account  of  ill-health, 
lie  resigned  from  the  army.  As  an  evidence  that  there  were  no  strained 
relations  between  Washington  and  him  at  that  time,  the  letter  of 
Washington  accepting  the  resignation  is  conclusive  i)roof.  Washing- 
ton wrote  that  he  "not  only  regretted  the  loss  of  a  good  officer,  but  the 


cause  which  made  his  resignation  necessary."  The  year  following  his 
resignation  from  the  army  occiirred  an  incident  which  Burr  related 
many  years  afterward.  He  was  visiting  his  fiance^  Mrs.  Prevost,  at 
Paramus,  when  Mrs.  Benedict  Arnold,  under  a  military  escort  on  her 
way  to  Philadelphia  after  her  husband's  treason  and  flight,  stopped  at 
the  house.  Burr  in  after  years  alleged  that  Mrs.  Arnold  then  told 
Mrs.  Prevost  in  his  presence  that  she  had  inspired  her  husband  to  his 
treasonable  acts  and  knew  all  about  them. 

In  1780  Burr  began  the  study  of  law  with  a  Judge  Patterson  of 
New  Jersey,  but  in  the  following  year  went  to  Haverstraw,  New  York, 
and  lived  with  Thomas  Smith,  a  New  York  lawyer,  wiio  had  been 
driven  out  of  practice  by  the  military  occupation  of  the  city.  Under 
Smith  Burr  devoted  himself  diligently  to  studying  the  practice  of  the 
law  and  its  technicalities,  not  caring  to  lav  the  foundations  for  a  broad 


272  HISTORY    OF   THE   BENCH   AND    BAR   OF   NEAV   YORK 

juristic  training.  After  he  had  been  with  Smith  six  months  the  legis- 
lature of  New  York  passed  an  act  disqualifying  all  tory  lawyers  form 
practicing.  This  Burr  thought  was  his  opportunity.  He  went  to 
Albany  to  be  admitted,  but  was  confronted  with  the  rule  that  candi- 
dates must  have  studied  for  three  years  before  admission.  With  char- 
acteristic audacity  he  moved  his  own  admission  and  asked  for  a 
suspension  of  the  rule  because  his  time  had  been  spent  for  his  country 
in  the  military  service.  The  rule  was  suspended  and  Burr  was  licensed 
as  an  attorney,  January  19,  1782,  and  was  admitted  as  counsellor  in 
April,  1782,  when  he  was  twenty-six  years  old.  He  opened  an  office 
in  Albany  and  at  once  acquired  a  large  practice.  A  few  months  after 
his  admission  to  the  bar  he  married  Theodosia  Prevost,  who  was  ten 
years  his  senior  and  the  mother  of  two  sons. 

After  his  marriage  he  set  up  house-keeping  in  Albany  on  an 
elaborate  scale,  and  in  the  first  year  of  his  marriage  was  born  his  only 
child,  named  Theodosia,  after  her  mother.  He  practiced  law  in  Albany 
eighteen  months,  and  when  the  British  evacuated  New  York  City  in 
1783  he  removed  there  to  practice.  For  the  next  eight  years  he  con- 
fined himself  almost  exclusively  to  the  practice  of  the  law.  His  income 
was  large,  and  he  established  himself  at  Richmond  Hill,  which  had 
been  Washington's  military  headquarters  while  in  New  York  City. 
There  Burr  and  his  wife  entertained  very  lavishly,  Talleyrand,  Louis 
Philippe  and  other  distinguished  persons  being  his  guests  at  various 
times. 

In  1784  and  1785  he  was  a  member  of  the  state  legislature.  While 
in  the  legislature  he  became  conspicuous  by  opposing  the  incorpora- 
tion of  a  mechanics'  guild  ;  he  also  advocated  the  abolition  of  slavery 
in  New  York.  He  took  no  part  in  the  making  or  adoption  of  the 
federal  constitution.  He  declared  after  the  constitution  was  adopted 
that  it  would  not  last  50  years.  In  1789  Governor  Clinton  appointed 
him  attorney-general  of  the  state,  although  he  had,  in  conjunction 
with  Hamilton,  opposed  Clinton's  re-election  as  governor.  In  1790  the 
attorney -general  was  made  one  of  the  three  commissioners  upon  whom 
the  legislature  devolved  the  duty  of  classifying  and  deciding  upon  the 
claims  of  individuals  for  services  rendered  and  losses  sustained  in  the 
revolutionary  war.  Burr  drew  up  a  report  which  was  accepted  by 
the  legislature.  The  principles  upon  which  claims  were  allowed  or 
rejected  as  stated  in  the  report  were  made  the  bases  of  all  future  set- 
tlements with  revolutionary  creditors. 

In  1791  he  was  elected  over  Philip  Schuyler  to  represent  New 
York  in  the  United  States  senate.  He  was  but  thirty-five  years  old  at 
the  time.  As  a  senator  he  acted  with  the  rej^ublican  (anti-federalist) 
party.  While  he  was  a  senator  his  wife  died,  in  1794.  Also  while  he 
was  in  the  senate  he  received  thirty  electoral  votes  in  the  electoral  col- 
lege that  chose  .lohn  Adams  president.  After  he  retired  from  the 
United  States  senate  he  was  immediately  elected  to  the  state  legisla- 


iiisTor.Y  oi'   Till':  1!i:n<ii  and  mm;  oi'  ni:w  v 


27:5 


.  I 


tint'.  Ill  l''^<"i  lit' Mild  .IcIlVr.son  each  had  scvcnty-lhrcc  electoral  votes 
lor  president.  The  Iloiiseor  Kcpre.seiilative.s  eho.se  Jell'ersoii  president 
and  Hurr  vice-president.  About  this  time  his  (laii<ihter  was  niarrieil  to 
.lo.seph  Alston,  of  South  Carolina,  who  sul).se<pieiitly  hecaiiK!  governor 
of  that  state.  In  iSOl,  while  Burr  was  vice-j)resident-elect,  lie  was 
chosen  to  })resi(le  ovei-  a  convention  (tailed  to  make  certain  aniendnieiits 
to  the  state  constitution.  When  he  came  to  i)reside  ()V(!r  the  I'nited 
Slates  senate  as  vice-president  his  conduct  was  the  essence  of  dignity 
and  courtesy.  He  exhibited  his  fairness  on  one  occasion  when  there 
was  a  tie  vote  by  votiui^  a<;ainst  the  republican  party  and  in  favor  of 
the  federalists  on  a  motion  to  refer  a  matter  to  a  committee.  While 
he  was  vice-president  his  mem- 
orable duel  with  Alexander  Ham- 
ilton occurred.  On  the  11th  of 
July,  1804,  Burr  mortally  wound- 
ed Hamilton  at  Weehawken, 
Hamilton  died  from  the  effects 
of  the  wound,  and  Burr  also  may 
be  said  to  have  died  socially  and 
politically.  After  the  duel  he 
escaped  first  to  Philadelphia  and 
then  to  South  Carolina,  where  his 
daughter  lived.  He  was  indicted 
in  both  New  York  and  New  Jer- 
sey, but  the  indictments  were 
never  pressed  and  he  was  never 
prosecuted.  He  returned  to 
\Vashington  and  presided  over 
the  senate  during  the  winter  of 
1804-5. 

After  his  term  as  vice-president 
had  expired  he  turned  his  atten- 
tion to  Mexico,  and  in  consequence  was  indicted  for  treason,  the  indict- 
ment alleging  that  he  intended  to  wrest  some  of  the  territory  of  the 
United  States  from  them,  and  that  he  had  committed  an  overt  act  of 
treason  by  arming  and  setting  on  foot  an  expedition  which  was  pre- 
pared to  make  war  on  the  United  States.  He  was  brought  to  trial  at 
Richmond,  Virginia,  before  Chief-Justice  Marshall  and  was  acquitted. 
After  his  acquittal  he  went  to  Europe,  where  he  stayed  until  1812,  in 
which  year  he  returned  to  New  York  City  and  resumed  the  practice  of 
law.  His  daughter,  who  sailed  from  Charleston,  South  Carolina,  in 
December,  1812,  for  New  York,  Avas  lost  at  sea,  the  boat  never  reaching 
land.  A  few  years  before  Burr  died  he  married  Madame  Jumel,  but 
he  lived  with  her  only  a  short  while. 

Burr  was  in  no  sense  a  great  jurist.     His  success  at  the  bar  was  as 
an  attorney  as  contra-distinguished  from  a  barrister.     He  particularly 


TUEODOSIA    BURR. 


274  HISTOKY    OF   THE  BENCH   AND   BAR   OF   NEW   YORK 

shone  at  nisi  prius ;  the  logical  atmosphere  of  the  appellate  court 
was  not  congenial  to  his  taste.  His  forte  lay  in  the  preparation  of  a 
case  for  trial.  He  neglected  no  opportunity,  however  small,  to  insure 
success  to  his  client.  While  his  great  rival  Hamilton  was  studying  a 
case  from  the  standpoint  of  scientific  principles,  Burr  was  planning  how 
he  could  get  evidence  to  support  a  fact  he  thought  would  be  material. 
His  favorite  maxim  was  "Law  is  whatever  is  boldly  asserted  and  plausi- 
bly maintained."  He  was  a  consummate  verdict-getter,  but  this  was 
not  due  to  his  eloquence^for  he  always  addressed  the  jury  in  a  con- 
versational tone, — but  to  his  winning  manners  and  his  familiarity  with 
the  details  of  his  case.  As  a  nisi  prius  lawyer  he  may  be  termed  the 
''  Scarlett  of  the  American  bar." 


USTEED,  RICHARD  (born  in  Cavan,  Ireland,  February  16, 
1822),  was  the  son  of  George  Washington  Busteed,  a  Dublin 
barrister,  who  emigrated  to  Canada  and  thence  to  the  United 
States.  Richard  Bnsteed  was  admitted  to  the  bar  in  1846 
and  engaged  in  successful  practice.  His  connection  with  several  im- 
portant extradition  cases  contributed  much  to  his  reputation.  He  was 
corporation  counsel  of  New  York  from  1857  to  1859.  Though  an  in- 
tense Douglas  democrat,  he  warmly  supported  President  Lincoln  and 
the  union  cause  after  the  firing  on  Sumter.  He  was  appointed 
l)rigadier-general  of  volunteers,  and  resigned  in  1863.  In  the  same 
year  he  was  appointed  United  States  district  judge  for  Alabama.  In 
this  office,  which  he  assumed  in  the  fall  of  1865,  he  rendered  a  notable 
decision,  maintaining  that  the  test  oath  prescribed  by  congress  was 
unconstitutional  so  far  as  it  applied  to  attorneys  practicing  before  United 
States  courts.  This  decision  became  a  precedent  and  was  supported  by 
the  Supreme  Court.  Much  attention  was  attracted  by  the  action  of 
Judge  Busteed  in  matters  involving  suspension  of  the  habeas  corpus 
act,  in  which  he  was  in  conflict  with  the  military  authorities.  He  re- 
signed in  1874  and  returned  to  New  York,  resuming  the  practice  of 
the  law. 


UTLER,  BENJAMIN  FRANKLIN  (born  at  Kinderhook 
Landing,  New  York,  December  14,  1795  ;  died  in  Paris, 
France,  November  8,  1858),  was  descended  from  an  original 
Irish  stock  combined  with  that  of  the  early  puritans  by  the 
marriage  of  his  ancestor,  Jonathan  Butler,  with  Temperance  Bucking- 
ham, a  daughter  of  one  of  the  first  settlers  of  Connecticut.  His  father, 
Medad  Butler,  emigrated  from  Connecticut  in  1787  to  the  banks  of  the 
Hudson.  He  served  in  the  state  legislature,  and  for  many  years  Avas 
county  judge  of  Columbia  county. 

Benjamin  F.  Butler  was  the  eldest  of  a  family  of  six  children. 
He  attended  school  in  his  native  town,  under  capable  instructors,  and 


iiisroi.'Y  OK   iiiK  in:N('ii   and  hai;  oi'  .m;u    viii;k  i,'7.» 

;is  ;i  l:ul  ;i((iiiiit'(l  :i  decided  fondness  for  l•(>^ldin^^  nnd  especially  for 
the  chissics.  Ill  ISII  he  <>ntered  tlie  law  ofiice,  at  Hudson,  of  Martin 
\'an  Hnien,  who  was  an  intimate  fi'iend  of  liis  father.  Il«>  was  an  in- 
mate of  Mr.  Van  liuren's  family  until  his  marriage,  in  1818,  and  became 
his  law  partner  in  Albany  upon  his  admission  to  the  bar  (1817).  In 
i8'21  h(^  was  appointed  district-attorney  of  Albany  county.  lie  resif^ned 
this  office  in  18:25  to  devote  liimself  to  the  i^reat  work  of  revising  the 
statutes  of  the  state. 

By  an  act  passed  November  27,  1824,  he  had  been  appointed  a 
member  of  the  revision  commission,  the  (>ther  ori<2;inal  members  being 
(Miancellor  .lames  Kent  and  Erastus  Root,  then  lieutenant-governor. 
The  act  required  that  the  work  should  be  completed  in  two  years,  and 
it  provided  that  each  of  the  revisers  should  receive  Sl,0()()  for  his 
services.  Chancellor  Kent  declined  to  serve,  and  John  Duer  was 
appointed  in  liis  stead.  Mr.  Butler  and  Mr.  Duer  were  from  the  outset 
in  liearty  accord  as  to  the  principles  and  methods  to  be  pursued  in 
their  undertaking.  They  advanced  the  proi)osition  that  the  time 
had  come  when  the  whole  written  law  might  be  comprised  under 
appropriate  titles,  classitied  in  natural  order  and  arranged,  as  to  each 
of  its  branches,  in  a  clear  and  scientific  method  ;  and,  while  conceding 
the  novelty  and  dilliculty  of  the  jiroject,  declared  their  readiness  to 
undertake  it.  "  We  propose  to  do  nothing  more,"  they  said,  "  than  to 
free  our  written  code  from  the  prolixities,  uncertainties,  and  confusion 
incident  to  the  style  and  manner  in  which  it  has  hitherto  been  framed, 
and  to  apply  to  the  elucidation  of  this  branch  of  the  noblest  of  all  sci- 
ences those  principles  of  an  enlarged  philosophy  which  now  obtain  in 
every  other  department  of  knowledge."  General  Root  was  not  in 
agreement  with  his  ardent  young  associates  in  their  bold  plan.  He 
accordingly  retired  from  the  commission,  and  Henry  Wheaton  was 
a])pointed  to  take  his  place.  Mr.  Wheaton  contributed  comparatively^ 
little  to  the  active  labors  of  the  commission,  and  resigned  in  March, 
1S27,  to  accept  a  diplomatic  position  abroad.  He  was  succeeded  by 
John  C.  Spencer.  Mr.  Duer  soon  afterward  withdrew,  having  been 
appointed  United  States  district-attorney  at  New  York  City  by  Pres- 
ident Adams.  The  work  was  completed  by  Mr.  Butler  and  Mr.  Spen- 
cer, and  the  entire  body  of  the  revised  statutes  was  enacted  by  the 
legislature,  December  10, 1828. 

Mr.  Butler  was,  therefore,  the  only  one  of  the  revisers  who  served 
from  the  beginning  to  the  end.  It  is  not  detracting  from  his  able  asso- 
ciates to  say  that  he  bore,  in  a  peculiar  manner,  the  burden  of  this 
great  task.  The  original  general  plan  of  the  revision  Avas  prej^ared  by 
him,  and  by  far  the  larger  part  of  the  entire  revision  was  his  indi- 
vidual work.  For  his  conscientious  and  long-continued  labors — 
extending  through  four  complete  years,  including  the  time  devoted 
to  the  publication  of  the  statutes— he  received  from  the  state  only 
87,600. 


276  HISTORY    OF  THE   BENCH   AND   BAR  OF  NEW   YORK 

Returning  to  the  active  practice  of  liis  profession,  he  was  con- 
stantly employed  in  the  most  important  cases,  especially  in  the  Court 
of  Errors.  In  1833,  upon  the  retirement  of  William  L.  Marcy  from 
the  United  States  senate  to  become  governor  of  New  York,  Mr.  Van 
Buren  (then  vice-president  and  presumptive  successor  to  the  presi- 
dency) earnestly  desired  Mr.  Butler  to  take  the  high  office  thus  left 
vacant ;  but  he  was  resolved  to  assume  no  position  which  would  with- 
draw him  from  his  professional  pursuits.  He  was  afterward  offered 
by  Governor  Marcy  a  place  on  the  bench  of  the  Supreme  Court  of  the 
state,  but  was  prevented  from  accepting  because  of  the  meagreness  of 
the  salary.  He  served  in  1833  on  the  commission  selected  to  settle  the 
boundary  line  between  New  York  and  New  Jersey. 

Toward  the  close  of  the  same  year,  at  the  urgent  solicitation  of 
President  Jackson,  communicated  to  Mr.  Butler  by  Mr.  Van  Buren, 
he  accepted  the  cabinet  office  of  attorney-general  of  the  United  States. 
Upon  the  resignation  of  General  Cass  as  secretary  of  war  in  1836,  Mr. 
Butler,  at  the  president's  request,  assumed  also  the  duties  of  the  war 
department  until  the  close  of  President  Jackson's  term.  He  continued 
to  serve  as  attorney-general  during  the  first  year  and  a  half  of  Yan 
Buren's  administration,  and  then,  resigning,  removed  to  New  York 
City  and  engaged  in  the  practice  of  the  law  at  the  metropolitan  bar. 
It  had  long  been  a  favorite  project  of  Mr.  Butler's  to  establish  a  law 
school  in  connection  with  the  University  of  the  City  of  New  York, 
and  he  now  (1838)  attempted  its  realization,  receiving  the  co-operation 
of  William  Kent  and  David  Graham,  who,  jointly  with  him,  wei-e  pro- 
fessors and  lecturers  in  the  new  institution.  Meantime,  until  1841,  he 
w^as  United  States  district-attorney. 

He  took  a  leading  part  in  the  democratic  national  convention  of 
1844  as  an  advocate  of  the  nomination  of  Mr.  Van  Buren  for  the  pres- 
idency, delivering  a  powerful  address  against  the  adoption  of  the  two- 
thirds  rule.  He  was  offered  a  portfolio  in  the  cabinet  of  President 
Polk  but  declined,  contenting  himself  with  resuming  the  office  of  dis- 
trict-attorney at  New  York,  which  he  retained  until  the  spring  of  1848. 
In  that  year  he  supported  Mr.  Van  Buren's  "  free-soil "  candidacy. 
In  1849  he  declined  an  appointment  as  one  of  the  code  commissioners 
tendered  him  by  Governor  Fish.  In  the  presidential  campaign  of  1852 
he  sustained  the  democratic  candidates  on  the  ground  that  they  repre- 
sented sound  democratic  doctrines  and  that  their  election  under  the 
existing  state  of  things  would  place  the  whole  responsibility  of  the 
government  in  the  hands  of  the  democratic  i)arty,  which,  if  it  should 
then  lend  itself  to  a  crusade  against  freedom,  would  be  justly  over- 
thrown. When  President  Pierce  disappointed  the  expectations  of  the 
northern  democrats  on  the  slavery  issue,  Mr.  Butler  promptly  severed 
his  life-long  connection  with  the  democratic  organization.  At  a  memo- 
rable mass-meeting  of  citizens,  held  in  City  Hall  Park,  May  15,  1854, 
he  was  the  principal  speaker,  and  declared  himself  aggressively  against 


iiisroKV  OF  'riiK  iu:n(1i  and  iiak  ok  m:\v   vokk  'J77 

all  further  alliance  with  llu;  slave  jjower.  In  thi.s  atfitude  he  per- 
severed to  the  end  of  his  life,  votiii<j;  for  Fremont  in  18.")(;  and  taking 
a  keen  interest  in  the  Kansas  struggle. 

The  close  of  his  professional  career  was  signalized  by  a  notable 
triumph  in  a  famous  litigation,  growing  out  of  the  attempt  of  the 
representatives  of  an  insolvent  speculative  corporation,  the  North 
American  Trust  and  l^anking  (^om])any,  to  defeat  the  claims  of  its 
secured  creditors,  chielly  English  capitalists.  He  was  the  senior  coun- 
sel for  the  creditors,  and  the  Court  of  Appeals  decided  the  case  on  all 
points  in  their  favor. 

He  died  of  a  sudden  illness  while  on  a  trijo  abroad,  November  28, 
1858. 

^Ir.  Butler's  character  was  singularly  pure  and  noble.  No  name 
in  all  the  liistory  of  the  New  York  bar  is  held  by  posterity  in  higher 
honor  than  his.  Notwithstanding  the  distinction  which  he  attained 
in  the  nuiturity  of  his  career,  he  always  regarded  his  connection  with 
the  revision  of  the  statutes  as  the  distinctive  work  of  his  life  ;  and  on 
his  tombstone  in  Woodlawn  cemetery  are  inscribed  tlie  words :  "  A 
Conmiissioner  to  Revise  the  Statutes  of  the  State  of  New  York." 


SUTLER,  George  B.  (born  in  New  Haven,  Connecticut,  in  1809 ; 
died  in  New  York  City,  April  13,  1886),  was  admitted  to  the 
bar  in  New  York  and  established  a  law  firm  with  Daniel 
Lord.  At  the  organization  of  the  Hudson  River  Railroad 
Company  he  was  its  secretary  and  counsel,  and  for  twenty-five  years  he 
was  the  legal  adviser  to  A.  T.  Stewart  &  Co.  He  was  one  of  the 
founders  and  editors  of  the  Journal  of  Commerce. 


g^ADY,  DANIEL  (born  in  Chatham,  New  York,  April  29, 1773  ; 
died  in  Johnstown,  New  York,  October  31,  1859),  was  admit- 
ted to  the  bar  in  1795  and  practiced  in  Johnstown  ;  was  a 
member  of  the  legislature  from  1810  to  1813  and  a  federalist 

member  of  congress  from  181-1  to  1817,  and  served  as  justice  of  the 

state  Supreme  Court  from  1847  to  1855. 


[ATNES,  GEORGE  (born  in  1771 ;  died  in  Catskill,  New  York, 
July  10,  1825),  was  prominent  among  the  early  legal  writers, 
and  for  a  long  period  was  official  reporter  of  the  Supreme 
Court  of  New  York.  His  important  works  are  :  "  Lex  Mer- 
ca/on'a  Americana  ^^  {IS02),  "Cases  in  the  Court  of  Errors "  (2  vols., 
1S05-7),  "  Forms  of  the  New  York  Supreme  Court"  (1808),  "  Summary 
of  the  Practice  in  the  New  York  Supreme  Court "  (1808),  "  Cases  in 
the  Court  for  the  Trial  of  Impeachments,"  etc.  (2  vols.,  1805-7),  and 
"  New  York  Supreme  Court  Reports  "  (3  vols.,  1803-5  ;  2d  ed.,  1852). 


278  HISTORY    OF   THE  BENCH   AND   BAR   OF  NEW  YOKK 

fAMPBELL,  WILLIAM  W.  (born  in  Cherry  Valley,  Otsego 
county,  New  York,  June  10,  1806  ;  died  there  September  7, 
1881),  was  graduated  from  Union  College  in  1827  and  studied 
law  under  the  direction  of  Chancellor  Kent.  Removing  to 
New  York  he  entered  upon  legal  practice  in  1831.  In  1841  he  was  ap- 
pointed master  in  chancery,  and  in  1842  commissioner  of  bankruptcy 
for  the  southern  district  of  New  York.  He  served  a  term  in  congress 
(1845-47)  as  a  representative  of  the  national  American  party,  during 
which  he  took  a  prominent  part  in  effecting  reform  in  the  con- 
sular service.  From  1849  to  1855  he  was  a  justice  of  the  Superior  Court 
of  New  York  City,  serving  contemporaneously  with  Duer  and  John  L. 
Mason.  He  was  a  Justice  of  the  Supreme  Court  for  the  6th  judicial 
district  from  1857  to  1865. 

He  was  the  first  judge  who  held,  under  the  statute  enlarging 
the  legal  rights  of  married  women,  that  a  man  could  convey  real 
estate  directly  to  his  wife  without  the  intervention  of  a  trustee.  He 
was  the  author  of  several  historical  and  biographical  works :  "  Annals 
of  Try  on  County,  or  the  Border  Warfare  of  New  York"  (1831,  repub- 
lished in  1849  and  18S0),  "Life  and  Writings  of  De  Witt  Clinton" 
(1849),  "  Memoirs  of  Mrs.  Grant,  Missionary  to  Persia "  (1840),  and 
"  Sketches  of  Robin  Hood  and  Captain  Kidd  "  (1853). 


'  HAMBERS,  JOHN  (born  about  1710 ;  died  in  New  York, 
April  10,  1765),  was  a  member  of  the  executive  council  in 
1754  and  one  of  the  commissioners  to  the  Albany  congress 
"^  in  June  of  that  year.  He  was  eminent  as  a  lawyer  and  was 
associated  in  the  famous  Zenger  case.  He  was  apj)ointed  associate- 
judge  of  the  Supreme  Court  in  1757  and  became  chief -justice. 


HAPMAN,  ORLOW  W.  (born  in  Ellington,  Connecticut,  in 
1832  ;  died  in  Washington,  D.  C,  January  19, 1890),  was  grad- 
uated from  Union  College,  and  for  a  number  of  years  was 
a  professor  of  languages.  In  1856  he  began  the  study  of 
the  law  with  Robert  Parker,  and  in  1858  he  entered  upon  the  prac- 
tice in  Binghamton.  He  was  appointed  district-attorney  of  Broome 
county  in  1862  and  re-elected  in  1865.  He  served  in  the  state  senate  in 
1870  and  1871.  At  the  time  of  his  death  he  was  solicitor-general  of  the 
department  of  justice.  ^^___ 

fHATPIELD,  LEVI  B.  (born  in  Otsego  county,  New  York, 
March  5,  1808 ;  died  in  Elizabeth,  New  Jersey,  August  4, 
1884),  was  admitted  to  the  bar  and  began  practice  in  Lau- 
rens, New  York.  He  was  elected  to  the  assembly  as  a  demo- 
crat in  1838  and  became  its  speaker  in  1842.  In  1847  he  was  elected 
attorney-general,  and  he  was  re-elected  in  1851.    He  resigned  the  office 


iiisroKY  OF  Till':  iu;n(II  and  i?ak  <»i'  m;w   vokk  2T.) 

ill  lsr);M()  accept  the  jjositioii  of  j)resi<lent  of  the  Atlantic  iV  Pacific 
Raihoad  ('oinpany,  from  \vlii(!h  lie  riitiicd  in  lH(il,  i-esiuiiiii<,f  the  j)rac- 
tice  of  tlie  hiw.  lie  was  a  professor  in  the  hiw  (lejjuitnjent  of  the  Uni- 
versity of  the  City  of  New  York.  He  was  eminent  at  the  bar,  having 
charge  of  many  imi)ortant  cases. 


IIHTRCH,  SANPORD  ELTAS  (born  in  ^filford,  Otsoiro  county, 
New  York,  April  18,  181.') ;  died  in  Albion,  New  York,  May 
14,  1880),  after  receiving  an  academic  education  fitted  himself 
for  the  profession  of  the  law,  and  began  its  practice  in 
He  very  soon  attained  an  excellent  reputation  as  a  prac- 
From  early  life  he  was  active  also  in  i)olitics,  giving  his 
support  to  the  principles  of  the  democratic  i)arty.  In  1842  he  became 
a  member  of  the  assembly  from  Orleans  county.  In  1846-47  he  was 
district-attorney  of  the  county,  from  IS.')!  to  18.").')  lieutenant-governor, 
and  in  1858  and  18.59  comptroller  of  the  state.  In  1862  he  was  a  candi- 
date for  congress,  but  was  not  elected,  and  in  the  next  year  he  was  de- 
feated as  a  candidate  for  comptroller.  He  was  a  delegate  to  the  con- 
stitutional convention  of  1867,  being  chairman  of  its  committee  on 
finance.  The  reorganization  of  the  Court  of  Appeals  effected  under 
the  judiciary  amendment  of  this  convention  provided  that  the  court 
should  in  future  consist  of  a  chief-judge  and  six  associates,  each  to 
hold  office  for  fourteen  years.  Mr.  Church  was  chosen  chief-judge  of 
the  new  Court  of  Appeals  (1870),  and  filled  that  office  with  great  dis- 
tinction until  his  death.  The  opinions  delivered  by  him  from  that 
bench  belong  to  the  first  order  of  judicial  literature,  being  especially 
marked  by  solid  qualities.  Judge  Church's  personality  was  in  all 
respects  of  the  highest.  As  a  public  man,  although  the  purely  political 
offices  filled  by  him  were  comparatively  subordinate,  he  ranks  with  the 
very  distinguished  sons  of  the  state.  In  his  latter  years  he  was  con- 
sidered one  of  the  most  available  men  of  the  democratic  party  for  the 
presidency  of  the  United  States. 


LINTON,  DE  WITT  (born  in  Little  Britain,  New  Windsor, 
Orange  county,  New  York,  March  2,  176!) ;  died  in  Albany, 
New  York,  February  11,  1828),  was  a  son  of  General  James 
=^    Clinton  of  the  Revolution.'     He  was  graduated  at  Columbia 
College  in  1786,  and  studied  law  under  the  direction  of  Samuel  Jones, 

'  James  Clinton  distinguished  himself  in  the  French  member  of  the  state  legislature  and  as  a  member  of  the 

and  Indian  war,  and  early   in  the  Revolution  was  ap-  convention  that  framed  the  national  constitution.    He 

pointed   brigadier-general.      He   was   consi-icuous    in  was  born  August  9,  1736,  and  died  December  22,  1812. 
several  exploits   and  expeditions,  and  commanded  at         His  father,  Charles  Clinton,  ancestor  of  the  Clinton 


Albany  during  a  considerable  part  of  the  war.    After  family  (born  in  county  Langford,  Ireland,  in  1690  ;  died 

the  establishment  of  peace  he  became  .prominent  in  in  Orange  county.  New  York,  November  19,  1773),  was 

public  life,  serving   as  a  commissioner  to  adjust  the  a  farmer  and  land  surveyor,  and  served  as  justice  of  the 

boundary  between  New  York  and  Pennsylvania,  as  a  peace,  county  judge  and  lieutenant-colonel  of  militia. 


280 


IIISTOEY    OF   THE   BENCH    AND   BAR   OF   NEW  YORK 


being  admitted  to  the  bar  in  1788.  Naturally  adapted  for  public  em- 
ployments, lie  enjoyed  unusual  opportunities  for  engaging  successfully 
in  jiolitics.  He  wrote  for  the  press  a  series  of  letters  on  the  newly- 
adopted  national  constitution  from  the  anti-federalist  point  of  view, 
and  in  1790  he  became  private  secretary  to  Governor  George  Clinton, 
his  uncle.     While  in  this  position  he  held  other  important  offices.     In 

1797  he  was  a  member  of  the  lower  house  of  the  legislature,  and  from 

1798  to  1802  of  the  senate.  As  a  senator  he  advocated,  among  other 
measures,  the  relief  of  prisoners  for  debt,  the  abolition  of  slavery  in 
the  state,  and  the  promotion  of  the  use  of  steam  in  navigation.  He 
became  a  member  of  the  United  States  senate  in  1802,  but  soon  resigned, 
having  been  appointed  mayor  of  New  York  City.    In  this  office  he 

continued,  with  the  exception 
of  four  years,  until  1815.  Mean- 
time he  was  state  senator  (1805- 
1 1)  and  lieutenant  -  governor 
(1811-13).  In  1812  he  was  an 
aspirant  for  the  presidency,  but 
having  alienated  a  large  ele- 
ment of  his  party  from  him  by 
his  course  in  certain  regards, 
he  failed  to  realize  his  ambition 
and  Madison  was  chosen.  As 
mayor  of  New  York  he  dis- 
played the  greatest  and  most 
intelligent  public  spirit,  and  the 
beginning  of  the  metropolitan 
character  of  the  city  dates  from 
his  regime.  He  was  identified 
from  the  beginning  with  the 
Erie  canal  enterprise,  and  the 
ultimate  construction  of  the  canal  w^as  due  mainly  to  his  efforts.  In 
consequence  of  his  activity  in  this  popular  cause  he  was  elected  gov- 
ernor in  1817  by  a  non-partisan  vote.  He  was  re-elected  in  1819. 
Disapproving  some  of  the  amendments  to  the  constitution  adopted 
by  the  convention  of  1821,  he  declined  to  be  again  a  candidate.  His 
enemies  in  1824  caused  him  to  be  displaced  from  his  position  of  canal 
commissioner.  This  act  aroused  public  resentment  and  led  to  his 
re-election  as  governor  in  1824  by  the  large  majority  of  16,000.  The 
canal  was  formally  opened  in  the  next  year,  and  in  1826  he  was  again 
chosen  governor.     lie  died  before  the  expiration  of  his  term. 

De  Witt  Clinton's  attainments  were  those  of  the  broadest  states- 
manship, sustained  by  a  thorough  mastery  of  the  science  of  the  law. 


DE  WITT  CLINTON. 


UK  I!i:n(Ii   am 


IK    NKW 


>i:k 


281 


LIXTON,  GE()H(;K  (l)()ni  in  Little  Miitaiii,  I'lstrr  (•(.iiiity. 
New  York,  .Inly  2(),  17:5!);  died  in  Wnsliin^Mon,  District  of 
('(.iiimhiii  April  2i),  1812),  was  the  fourth  son  of  Charles 
Clinton  and  the  uncle  of  J)e  Witt  Clinton.  As  a  youth  he 
saw  sei-vioe  in  tln»  Freiudi  and  Indian  war.  lie  studied  law  in  the  office 
of  William  Smith,  a  i-enowned  colonial  lawyer.  As  a  Triend)er  of  the 
asstMubly  in  17(58  he  was  i)ronnnent  in  advocating  the  rights  of  the 
colonies,  'i'he  New  York  provincial  convention,  April  22,  1 775,  elected 
him  one  of  the  delegates  to  the  second  continental  congress.  In  tliat  body 
he,  with  his  New  York  colleagues,  refrained  from  voting  on  tlie  question 
of  indt'pendence,  leaving  that  nuitter  to  be  passed  upon  by  tlie  pro- 
vincial congress  of  his  state,  which  promptly  (July  8,  1770)  approved 
the  declaration  of  independence.  He  was  dispatched  by  Washington 
to  the  Highlands  of  New  Y'ork  in  the  same  month  with  the  rank  of 
general  of  militia.  He  was  a  deputy  to  the  provincial  congress  of 
1777,  by  which  the  New  York  state  constitution  was  frajued,  but  his 
particii)ation  in  its  deliberations  was  interrupted 
by  another  summons  to  the  field,  the  appointment 
of  brigadier-general  in  the  continental  army  hav- 
ing been  conferred  on  him  in  March.  He  com- 
manded in  the  defence  of  the  Highland  forts  in 
October,  1777.  On  April  20,  1777,  he  was  elected 
governor,  being  the  first  to  fill  that  office,  and  he 
served  in  it  continuously  until  1795.  His  admin 
istration  was   characteiized   throughout  by  vigor  <"^'">>  ^i  >'- 

and  public  spirit.  He  was  again  elected  governor  in  1801.  At  the  early 
presidential  elections  he  received  votes  for  the  presidential  office.  He 
was  vice-president  of  the  United  States  from  1804  until  his  death. 
Governor  Clinton  was  a  strong  anti-federalist,  and  originally  opposed 
the  adoption  of  the  constitution  on  the  ground  that  it  gave  excessive 
power  to  the  central  government,  but  he  acquiesced  in  that  instru- 
ment, and  was  the  presiding  ofiicer  of  the  state  convention  held  in  1788 
to  ratify  it. 

He  was  a  sound  lawyer,  excellently  versed  in  the  principles  of  the 
law  and  well  equipped  by  temperament  ai\d  judgment  in  its  practical 
applications. 


l^^iLlNTON.  GEORGE  W.  (born  in  New  York  City  in  ISOT ; 
iSSfe-J  <^i^d  in  Albany,  September  7,  1885),  was  a  son  of  De  Witt 
Clinton.  He  was  graduated  at  Hamilton  College  in  1829 
and  studied  both  medicine  and  law,  devoting  himself  to  the 
practice  of  the  latter.  He  was  admitted  to  the  bar  in  18.31  and  was 
taken  into  partnership  by  John  C.  Spencer,  whose  daughter  he  mar- 
ried. In  1835  he  removed  to  Buffalo.  Here  he  took  a  leading  place  in 
his  profession  and  filled  various  offices.  He  was  successively  examiner 
in  chancery,  collector  of   customs,  mayor  of  Buffalo  (1847-19),  and 


282  HISTORY    OF   THE   BENX'H   AND   BAR   OF   NEW   YORK 

judge  of  the  Superior  Court  of  Buffalo  for  twenty-three  years  from 
1854,  being  its  chief -justice  during  the  last  seven  years  of  his  service. 
He  was  a  delegate  to  the  constitutional  convention  of  1867,  serving  as 
chairman  of  the  committee  on  canals.  He  was  for  a  long  time  a  mem- 
ber of  the  board  of  regents  of  the  state  university. 

Mr.  Clinton  was  an  eminent  scholar  and  rendered  a  valuable  ser- 
vice to  the  state  by  editing  the  vast  collection  of  papers  in  the  state 
library  at  Albany  relating  to  the  public  career  of  George  Clinton 


fOCHRANE,  CLARK  B.  (born  in  New  Boston,  New  Hamp- 
shire, in  1817;  died  in  Albany,  New  York,  March  5,  1867), 
was  graduated  at  Union  College  and  admitted  to  the  bar. 
He  took  an  active  part  in  politics  as  a  democrat,  was  chosen 
to  the  assembly  from  Montgomery  county  in  1844,  afterwards  affiliated 
with  the  "  barnburner  "  faction,  opposed  the  Kansas-Nebraska  bill,  and 
then  joined  the  republicans,  being  elected  to  congress  in  1856  and  1858 
from  the  Schenectady  district.  In  1865  he  was  again  elected  to  the 
state  legislature.  He  was  a  lawyer  and  legislator  of  ability,  and  was 
styled  "  The  Great  Pacificator  "  because  of  his  tact  in  soothing  passion- 
ate debate. 


ODDINGTON,  DAYID  SMITH  (born  in  New  York  City  in 
1823  ;  died  in  Saratoga,  New  York,  September  2, 1865),  was  a 
son  of  John  I.  Coddington,  postmaster  of  New  York  under 
President  Jackson,  and  a  lineal  descendant  of  one  of  the  old- 
est families  of  the  country,  whose  ancestor  was  William  Coddington, 
founder,  judge,  and  first  governor  of  Rhode  Island.  He  was  graduated 
from  Union  College  and  studied  law  in  the  offices  of  George  W.  Strong 
and  Slosson  &  Schell,  being  admitted  to  the  bar  at  the  age  of  twenty- 
one.  As  a  youth  he  displayed  fine  oratorical  talents,  and  he  became 
one  of  the  most  eloquent  lawyers  and  political  speakers  of  his  time. 
Devoted  to  the  democratic  party,  he  did  not,  however,  approve  the 
policies  of  the  extreme  leaders  of  that  organization.  He  was  prominent 
in  the  free -soil  democracy,  and  gave  hearty  support  to  the  govern- 
ment in  the  war.  He  was  elected  to  the  legislature  in  1861.  At  the 
meeting  of  the  war  democracy  at  Cooper  Union,  November  1,  1864,  he 
delivered  a  memorable  address, 

A  brother  of  Mr.  Coddington's,  Jefferson  Coddington,  was  a  suc- 
cessful practitioner,  devoting  himself  to  office  practice  and  to  the  man- 
agement as  trustee  of  several  very  large  estates. 


iiisKHiv   OK   iiii:  iti:.\(ii    AM)   i!Ai;  ok  n  k\\    voi;k  "JKi 

(HJSWKl.L,  \VILLIA]\f  .lOlINSON  (horn  :if  Now  Preston, 
Ooiiiiccliciit,  NovcinlxM"  4,  17'.''.*;  died  iil  the  residence  of  his 
(liui^hter,  Mrs.  Caiilidd,  in  N.u  York  (Mty,  Marcli  7,  lss5), 
was  tlie  son  of  Colonel  William  (/Of^swell  and  Amaryllis 
•lolmson,  a  ^i-andson  of  Major  William  Cogswell  of  t\w  revolntionarv 
ai-my,  and  lineally  descended  fi-om  .lolm  Cogswell,  who  emigrated  from 
Westbnry,  England,  to  Ipswich,  Massachusetts,  in  l<i.'}4.  Obtaining 
his  early  education  in  the  loc^al  scdiools,  Mr.  Cogswell  attended  Yale 
(N)llege  until  the  close  of  liis  sophomore  year,  when  the  death  of  his 
father  forced  him  to  devote  himself  to  the  care  of  the  family.  He 
taught  school,  kept  a  store,  and  tried  farming,  while  at  the  same  time 
studying  law. 

Admitted  to  the  bar  at  Albany,  New  York,  he  began  practice  at 
Poughkeepsie,  but  removing  to  New  Y^ork  City  in  1831  formed  a  part- 
nersliip  with  Philip  S.  Crooke.  In  1884-  he  settled  at  Jamaica,  Queens 
county,  New  York,  where  he  continued  to  reside  until  a  few  years  pre- 
vious to  his  death. 

Soon  after  removing  to  Jamaica  his  attention  was  directed  to  ques- 
tions relating  to  trusts,  construction  of  wills,  and  the  law  of  real  prop- 
erty, and  his  practice  was  largely  in  these  directions.  In  1849  he  was 
appointed  county  judge  and  surrogate  of  Queens  county  to  succeed 
Judge  Ilagner,  deceased.  In  1853  he  also  opened  a  law  office  in 
Brooklyn,  in  association  with  Honorable  William  Rockwell,  and  after 
the  elevation  of  the  latter  to  the  Supreme  Court  formed  a  partnership 
with  George  Vandeverg,  which  continued  until  Mr.  Vandeverg's  death, 
in  1859.  Judge  Cogswell  retired  from  active  practice  in  187o,  although 
he  argued  his  last  case  in  the  Supreme  Court  in  1880,  when  more  than 
eighty  years  old. 

He  was  early  recognized  as  a  leader  of  the  bar  in  Queens  county,  and 
after  his  removal  to  Brooklyn,  by  his  success  in  such  important  inter- 
ests as  the  Terhune  and  Fleet  trusts,  tlie  Cornell  and  Udall  will  con- 
tests, and  other  notable  cases,  took  rank  with  the  leading  lawyers  of 
his  day  in  those  burdens  of  the  profession.  He  was  not  quick  at  form- 
ing conclusions,  but  a  diligent  student  and  painstaking  investigator, 
and  when  by  such  mature  deliberation  he  arrived  at  a  judgment,  he  was 
seldom  mistaken.  He  was  a  man  of  broad  views  ;  charitably  inclined, 
being  ever  ready  to  relieve  distress  or  give  encouragement ;  not  a  self- 
seeker,  though  active  in  politics  and  general  affairs.  He  ran  for  con- 
gress on  the  whig  ticket,  but  was  defeated.  He  early  joined  the  repub- 
lican party,  and  earnestly  supported  the  government  during  the  civil 
war.  Two  of  his  sons  went  to  the  front,  one  of  them,  George  E.,  dying 
in  the  service. 

For  many  years  Judge  Cogswell  was  president  of  the  village  of 
Jamaica.  He  was  also  president  of  the  board  of  trustees  of  Union 
Hill  Academy.  He  was  an  active  churchman,  and  the  erection  of  the 
diocese  of  Long  Island  was  largely  due  to  his  efforts. 


284 


HISTOKY    OF   THK    BKNCII   AND   BAK   OF   NEW   YORK 


OLDEN,  CADWALLADER  DAVID  (born  in  Springhill, 
near  Plushing,  Long  Island,  April  4,  1769 ;  died  in  Jersey 
City,  February  7,  1834),  was  a  grandson  of  Cadwallader 
Colden,  royal  lieutenant-governor  of  New  York  during  the 
stamp  act  excitement,  and  an  eminent  physician  and  scientific  scholar. 
He  completed  his  education  in  England,  returned  to  the  United  States 
and  was  admitted  to  the  bar  in  New  York  in  1791.  Later  he  practiced 
for  a  while  in  Poughkeepsie,  but  he  soon  resumed  his  residence  in 
New  York  and  became  one  of  the  most  prominent  lawyers  and  citizens. 
He  was  the  recognized  leader  of  the  bar  in  commer- 
cial law.  He  was  appointed  district-attorney  in 
1810,  was  a  member  of  the  legislature  in  1818,  and  in 
the  same  year  suc- 
'^cJtHjuodUc^JUy^  ^^oZ^U^^  ceeded  De  Witt  Clin- 
ton as  mayor,  and 
from  1824  to  1827  was  a  state  senator.  Notwith- 
standing his  tory  ancestry,  he  was  a  strong  patriot, 
and  in  the  war  of  1812  was  colonel  of  a  regiment  of 
volunteers.  He  cordially  seconded  De  Witt  Clinton's 
schemes  of  internal  improvements,  took  a  warm  interest  in  educational 
subjects,  and  for  a  long  period  was  a  governor  of  the  New  York  Hos- 
pital. He  was  an  intimate  friend  of  Robert  Pulton  and  published  his 
life  (1817),  to  which  he  added  a  ''Vindication  of  the  Steamboat  Right 
Granted  by  the  State  of  New  York  "  (1819).  He  also  wrote  a  ''  Memoir 
of  the  Celebration  of  the  Completion  of  the  New  York  Canals  "  (1825). 


COLDEN    ARM,^. 


|OLE,  SETH  BEACH  (born  in  Prattsburg,  Steuben  county. 
New  York,  December  25,  1820 ;  died  in  Nyack,  New  York, 
February  1,  189,')),  was  graduated  at  Union  College  in  1846, 
and  was  principal  of  Franldin  Academy  in  Prattsburg  for 
nine  years.  He  was  active  in  politics,  representing  Steuben  county  in 
the  legislature  (18r)5-.56)  and  taking  a  warm  interest  in  the  work  of  the 
Kansas  aid  committee,  for  which  he  raised  $40,000.  He  removed  to 
Brooklyn  and  was  admitted  to  the  bar  in  1855.  From  there  he 
removed  to  Nyack  in  1867.  He  served  as  a  county  judge  of  Rockland 
county. 


OLLIER,  JOHN  A.  (born  in  Broome  county,  New  York,  in 
1787  ;  died  in  Binghamton,  New  York,  March  24,  187H),  was 
one  of  the  original  commissioners  on  the  code.     He  was  a 
^^"^   prominent  lawyer  in   Binghamton,  was  a  member  of  con- 
jress  (1831-33),  and  was  state  comptroller  (1845-46). 


iisioitv   (»K    I  111;  iti:.\(ii   AM»  iiAi;  (i|-  m;\\    ■^oiik  2H5 

HOMSTOCK,  (iKOlKJK  I<^UANKL1N  (horn  in  Willinnisiouii. 
Oswci^oconnl y,  N«'\v  York,  An<i:u.st  '24,  1811;  died  in  Syracuse, 
ScpttMnbcr  ::^7,  ISD'i),  was  tlic  son  of  Scrajali  (JoinstocI\,  a 
revolutionary  soldier.  He  was  graduated  IVoni  I'nion  (/ol- 
\oi2;e  with  h'vj^h  lionois  in  IH.'U,  and  immediately  entered  the  hiw  odiee 
of  Noxon  «S:  Leavenwortli.  Admitted  to  the  bar  in  IS.'JT,  lie  started  in 
l)raeti('e  at  Syracuse  and  advanced  rapidly  in  reputation.  In  1847  he 
was  a])pointed  by  Governor  Yonn<^  reporter  for  the  Coui't  of  Ai)i)eals, 
a  ])osition  which  he  retained  for  three  years,  at  the  same  time  con- 
tinuing in  active  practice.  In  this  period  he  published  the  first  four 
volumes  of  the  New  York  Re[)orts.  In  1852  President  Fillmore  made 
him  solicitor  of  the  treasury  of  the  llnited  States.  In  1850  he  was 
elected  associate- judge  of  the  Court  of  Appeals,  occupying  that  bench 
for  six  years,  during  two  of  which  he  was  its  chief-justice.  Ilis  opin- 
ions are  contained  in  the  thirteenth  to  the  twenty-fourth  volumes  of 
the  New  York  Reports.  One  of  the  most  celebrated  of  them  is  his 
opinion  in  1856  annulling  the  prohibitory  liquor  law,  which  was  finally 
acquiesced  in  by  a  divided  bench.  His  opinion  in  Curtis  et  al.,  vs. 
Leavitt,  maintaining  the  validity  of  the  obligations  of  the  North 
American  Trust  and  Banking  Company,  amounting  to  $1,500,000,  held 
by  British  creditors,  fills  one  hundred  and  twenty-five  pages  of  the 
thirteenth  volume  of  the  reports. 

Judge  Comstock  was  a  strong  partisan  of  the  democratic  party, 
and  this  caused  his  defeat  when  he  became  a  candidate  for  re-election 
to  the  Court  of  Appeals  in  1801.  Except  as  delegate  for  the  state-at- 
large  to  the  constitutional  convention  of  1867,  his  subsequent  career 
was  devoted  to  his  private  j^ractice.  He  framed,  with  the  co-opera- 
tion of  Honorable  Charles  J.  Folger,  the  judiciary  article  of  the  pro- 
posed new  constitution,  which  was  the  only  part  of  that  instrument 
ratified  by  the  people.  The  distinction .  he  had  gained  on  the  bench 
brought  him  many  cases  involving  the  most  important  legal  principles 
and  the  largest  interests.  With  William  M.  Evarts  he  was  counsel 
for  William  H.  Yanderbilt  in  defending  his  father's  will.  His  later 
professional  work  appertained  specially  to  landed  and  trust  estates. 

He  initiated  the  movement  to  establish  the  University  of  Syracuse, 
and  donated  a  large  amount  of  money  to  that  institution.  He  was  one 
of  the  founders  of  Saint  John's  School  for  boys,  to  which  he  gave 
$50,000,  and  he  was  a  trustee  of  the  State  Asylum  at  Syracuse. 


=  ONKLING,  ALFRED  (born  in  Amagansett,  Suffolk  county, 
New  York,  October  12,  1789  ;  died  in  Utica,  February  5, 
1874),  was  graduated  at  Union  College  in  1810  and  admit- 
ted to  the  bar  in  1812.  He  served  as  district-attorney  of 
Montgomery  county,  as  an  anti-Jackson  democratic  member  of  congress 
(1821-23),  as  judge  of  the  United  States  District  Court  for  northern 


286  HISTORY    OF   THE   BENCH   A>'D   BAR   OF   IS'EAV   YORK 

New  York  (1825-52),  and  as  minister  to  Mexico.  He  remained  in 
Mexico  for  only  a  \'ear,  and  upon  his  return  gave  liis  attention  chieiiy 
to  literary  pursuits.  He  published  "  Treatise  on  the  Organization  and 
Jurisdiction  of  the  Supreme,  Circuit,  and  District  Courts  of  the  United 
States"  (2d  ed.,  1842),  "Admiralty  Jurisdiction"  (2  vols.,  1848),  "The 
Powers  of  the  Executive  Department  of  the  United  States  "  (1866),  and 
"  The  Young  Citizen's  Manual." 


[ONKLING,  ROSCOE  (born  in  Albany,  October  80, 1829  ;  died 
in  New  York  City,  April  18,  1888),  was  a  son  of  Honorable 
Alfred  Conkling.  He  inherited  his  father  s  high  ability  and 
aggressive,  resolute  and  persistent  character.  He  did  not 
enjoy  the  advantages  of  a  university  education,  but  he  pursued  a  course 
of  academic  studies,  supplemented  by  a  wide  range  of  general  reading. 
At  the  age  of  fifteen  he  entered  the  law  office  of  Spencer  &  Kernan  in 
Utica.  The  members  of  this  firm  were  Joshua  A.  Spencer  and  Francis 
Kernan.  Immediately  after  his  admission  to  the  bar,  at  the  age  of 
twenty-one,  he  was  appointed  by  the  governor  district-attorney  of 
Oneida  county,  to  till  a  vacancy.  He  filled  this  office  with  conspicuous 
ability  and  was  nominated  by  his  party  for  election  for  a  full  term,  but 
was  defeated.  He  then  for  a  number  of  years  devoted  himself  exclu- 
sively to  professional  business,  and  rose  to  an  eminent  place  at  the  bar. 
He  distinguished  himself  especially  in  the  conduct  of  trials,  and  was 
known  as  one  of  the  most  skillful  cross-examiners  and  one  of  the  most 
powerful  advocates  before  a  jury.  He  also  was  noted  for  his  careful 
study  of  the  principles  of  the  law  bearing  on  his  cases  ;  and  it  was  one 
of  his  remarkable  traits  that  this  learning  in  the  law  obtained  in  his 
early  years  was  always,  preserved  by  a  retentive  memory,  notwithstand- 
ing the  distractions  incident  to  a  long  career  in  pursuits  removed  from 
the  routine  of  the  courts. 

After  filling  the  office  of  mayor  of  Utica  for  two  terms,  he  entered 
the  lower  house  of  congress  in  December,  1859,  as  a  republican  mem- 
ber. From  that  time  until  1881  he  was  mainly  engrossed  in  public 
affairs,  although  during  the  recesses  of  congress  he  appeared  from 
time  to  time  in  special  cases.  He  continued  to  serve  in  the  house  of 
representatives  (excepting  for  one  term)  until  he  was  chosen  to  the 
senate  in  1867,  and  he  remained  in  that  body  until  1881,  when  he 
resigned,  and,  coming  to  New  York  City,  practiced  at  the  bar  until 
his  death. 

Mr.  Conkling  was  one  of  the  most  noteworthy  public  men  of  the 
last  half  century.  The  course  of  momentous  political  history  was 
largely  shaped  by  his  individuality.  In  the  house  of  representatives 
he  was  a  strong  supporter  of  the  war  measures.  In  the  senate  he  was 
prominently  identified  with  the  framing  and  the  enactment  of  much 
of  the  imi)ortant  legislation  of  the  memorable  period  from  1867  to 


III>1(>KV    OK   'nil'.    ItllNCIl    .\M>    ItAU    <>|'    Ni;\V    Y()|;K  *JS7 

ISSl.  lie  supported  lh(»  suiiMicni  ])()licy  of  President,  (iiaiil,  tlie  civil 
liiilits  hill,  iiiid  tlie  bill  for  resimipt ion  of  specie  payments,  and  took  a 
leading  part  in  the  electoral  commission  project  of  l.s7r)-77.  Bnt  it 
was  as  a  masterfnl  pai'ty  leader  that  Senator  (Jonkliug  was  distinctively 
known  and  (>xercised  his  most  positive  intlnence.  He  was  the  j)illar  of 
theCrrant  administration  in  the  legislative  (lei)artment  of  tht^  govei'ii- 
ment.  His  feud  with  James  (J.  Blaine  had  far-reaching  jjolitical  con- 
seqnences,  twice  preventing  the  nomination  of  Mr.  Hlaine  for  the  pres- 
idency, and,  by  reason  of  the  factional  division  in  the  republican  i)arty 
of  New  York  which  grew  out  of  it,  contributing  mateiially  to  his 
defeat  by  Mr.  Cleveland  in  1S84.  Mr.  Coid^ling  was  himself  a  candi- 
date for  the  rei)ublican  presidential  nomination  in  187G,  receiving  93 
votes  in  the  national  convention.  He  had  differences  with  President 
Hayes  on  the  question  of  the  New  York  patronage,  which  culminated 
in  the  removal  by  the  president  of  Mr.  Arthur  as  collector  of  the  port 
of  New  Y'ork.  At  the  national  convention  of  1880  he  led  the  move- 
ment for  the  nomination  of  President  Grant  for  a  third  term.  Pres- 
ident (larfield,  soon  after  his  inauguration,  greatly  offended  Mi*.  Conk- 
ling  by  his  api)ointments  to  the  New  Y'ork  offices,  and  in  consequence 
the  latter,  with  his  colleague,  Senator  Piatt,  resigned  and  sought 
re-election  by  the  New  Y^ork  legislature  as  vindication.  But  the 
legislature  refused  to  re-elect  them,  and  Mr.  Conkling's  public  life  was 
at  an  end. 

President  Grant  on  November  8, 1873,  offered  to  Mr.  Conkling  the 
position  of  chief-justice  of  the  United  States  Supreme  Court,  and  sub- 
sequently renewed  the  offer,  but  he  declined  the  place.  He  also  declined 
a  tender  by  President  Grant  of  the  mission  to  England.  He  was  offered 
a  seat  on  the  Su]>reme  Bench  by  President  Arthur,  but  again  declined. 

Of  Mr.  Conkling's  professional  life  in  New  Y^ork  after  his  retire- 
ment from  the  senate,  one  of  his  intimate  friends  has  written  as 
follows : 

The  career  of  Mr.  Conkling  at  this  bar,  and  in  the  courts  of  other  states,  after 
his  return  from  public  life,  was  one  of  the  most  remarkable  events  iu  the  annals  of 
our  profession.  He  commenced  here  alone.  He  was,  of  coui"se,  at  once  brought 
into  competition  with  a  numerous  bar,  many  of  whom  were  near  his  age,  and  who 
had  been  drilled  by  the  uninterrupted  practice  of  their  profession,  in  which  they 
had  risen  to  distinction  during  the  years  in  which  Mr.  Conkling  had  devoted  his 
energies  to  public  aifairs.  But  his  success  was  assured  from  the  start.  He  was 
employed  in  a  great  many  important  cases.  His  clients  ranked  him,  and  rated  the 
value  of  his  services,  very  high.  It  is  safe  to  say,  I  think,  that  during  those  seven 
years  of  his  practice  he  received  a  larger  professional  income  than  was  ever  paid, 
in  the  same  length  of  time,  to  any  other  lawyer  of  this  country.  Something, 
doubtless,  is  to  be  credited  to  personal  admiration  and  pei-sonal  devotion,  but,  in 
the  main,  his  unprecedented  success  was  due  to  the  fact  that  he  was  deemed  by 
those  having  great  interests  at  stake  to  be  as  great  a  power  at  the  bar  as  he  had  been 
in  public  life.' 

His  death  was  due  to  exposure  in  the  "blizzard"  of  March  12, 1888. 

1  William  D.  Shipman,  memorial  t^ketch  in  New  York  City  Bar  Association  Report,  1890. 


288       HISTORY  OF  THE  BENCH  AND  BAR  OF  NEW  YORK 


ORTLANDT,  STEPHEN.      See  VAN  CORTLANDT,  STE- 
PHANUS. 


OWEN,  ESEK  (born  in  Scitnate  near  the  close  of  the  seven- 
;  teenth  century,  died  in  1844),  ranked  among  the  foremost 
lawyers  and  judges  of  New  York  state.  Early  obtaining 
marked  recognition  as  a  practitioner,  he  was  appointed  in 
1823  reporter  to  the  Supreme  Court,  retaining  the  position  until  1828. 
During  the  period  of  his  service  he  produced  seven  volumes  of  reports. 
In  1828  he  was  appointed  judge  of  the  4th  Circuit  in  place  of  Reuben 
H.  Walworth,  who  was  made  chancellor.  In  1886  he  became  associate- 
justice  of  the  Supreme  Court,  filling  the  position  with  distinguished 
ability  until  1844.  He  was  author  of  "Civil  Jurisdiction  of  Justices  of 
the  Peace,"  and,  in  connection  with  Nicholas  Hill,  of  "Notes  to 
Phillips'  Evidence,"  a  standard  book  of  reference  on  that  branch  of 
the  law.  

OWEN,  ESEK,  nephew  of  the  preceding  (born  in  Hartford, 
Washington  county.  New  York,  October  14,  1834),  was  the 
son  of  Judge  Solomon  S.  Cowen  and  Electra  T.  Bush.  His 
father  was  born  in  Scituate  in  1790,  moved  to  this  state  in 
1810,  and  was  for  many  years  judge  of  the  Court  of  Common  Pleas  of 
Washington  county.  Esek  Cowen  was  educated  at  the  Troy  Confer- 
ence Academy,  West  Poultney,  Vermont,  graduating  in  1852.  Follow- 
ing the  profession  of  his  father  he  entered  the  office  of  B.  F.  Agen,  of 
Granville,  afterward  the  office  of  Hill,  Cagger  &  Porter,  completing  his 
preparatory  studies  at  the  Albany  Law  School.  He  was  admitted  in 
1855,  opened  an  office  at  Troy,  soon  after  removed  to  Saratoga,  and  ten 
years  later  returned  to  Troy,  practicing  fiv^e  years  alone,  after  which 
he  entered  the  firm  of  Smith,  Cowen  tt  Fursman,  of  Troy,  and  as 
counsel  for  the  New  York  Central  &  Hudson  River  Railroad,  the 
Citizens'  Steamboat  Company,  and  several  local  corporations  of  Troy, 
became  especially  prominent  in  his  profession. 


fRI'^GER,  DANIEL  (born  in  Sunbury,  Pennsylvania,  December 
22,  1780  ;  died  in  Wheeling,  West  Virginia,  June  5,  1843), 
was  descended  from  a  German  ancestry,  his  father  having 
emigrated  to  Pennsylvania  from  the  Duchy  of  Holstein  in 
1768.  He  was  apprenticed  to  a  printer  in  Albany,  New  York,  and 
after  learning  his  trade  removed  to  Owego  and  started  the  Owego 
Democrat,  the  first  newspaper  published  in  that  part  of  the  state.  In 
1804  he  entered  the  office  of  General  S.  S.  Haight  in  Bath,  New  York, 
as  a  student  of  the  law,  and  in  1806  he  was  admitted  to  the  bar.     He 


IIISIOKV    (iK     llli:    HKNCII     AM)    1!A  i:    i>F    M'.W     ^()1;K  28!> 

immediately  became  jtromiiieiU  in  tlie  jjiofessioii,  and  williin  a  lew 
yeais  raid\.ed  with  the  leading-  men  of  the  Steul)en  bar.  lie  served 
with  credit  for  a  brief  time  in  the  war  of  ISIi>.  and  from  IHIM  to  1810 
was  aniember  of  the  as.send)ly,  bein<;  chosen  speaker  in  1810.  Mean- 
time lie  was  district-attorney  for  the  7th  district.  In  IMIC  he  \\;is 
elected  to  congress.  In  IMf)  he  l\)rnied  a  legal  coi)artnershii)  with 
William  R.  Rochester.  In  J8;{;{  he  married  a  Miss  Shei)ar(l,  of  Wheeling, 
West  N'irginia,  and  soon  afterward  he  took  up  his  residence  in  that 
city.  Mr.  Cruger  was  one  of  the  most  distinguished  advocates  of  his 
time  in  the  western  part  of  the  state. 


^I'KTIS,  (}p:ORGE  (born  in  Windsor,  Vermont,  September  19, 
17!)i) ;  died  June  :2,  1884),  was  graduated  at  Union  College  in 
1822.  lie  entered  the  legal  profession,  and  at  once  advanced 
to  high  rank  at  the  bar  of  New  York  City.  For  many 
years  he  resided  in  Brooklyn,  and  he  was  prominent  in  the  affairs  of 
that  city.  In  his  younger  years,  as  a  member  of  the  legislature,  he  was 
an  able  coadjutor  of  I)e  Witt  Clinton.  He  became  one  of  the  leaders 
of  the  whig  i)arty,  and  took  a  keen  interest  in  its  success.  He  removed 
to  Schenectady  in  1867  and  retired  from  the  active  pursuit  of  his  pro- 
fession.   

lURTIS,  GEORGE   TICKNOR  (born   in  AVatertown,  Massa- 
chusetts. November  28,  1812  ;  died  in  New  York  City,  March 

11  28,  1894),  was  a  brother  of  Justice  Benjamin  Robbins  Curtis 
of  the  United  States  Supreme  Court,  and  a  nephew  of  George 
Ticknor  Curtis,  of  Boston,  the  distinguished  man  of  letters  and  pro- 
fessor of  languages  in  Harvard.  He  was  graduated  at  Harvard  in  1832, 
read  law,  and  began  practice  in  Boston.  He  soon  attained  great 
prominence  at  the  bar,  his  specialties  being  patents  and  constitutional 
law.  He  argued  the  laAv  points  in  the  Dred  Scott  case  before  the 
United  States  Supreme  Court  while  his  brother  was  still  on  the  bench. 
From  his  early  life  he  was  active  in  politics  as  a  democrat,  but  in  the 
war  he  was  an  earnest  unionist.  He  was  a  close  personal  friend  of 
Daniel  Webster,  and  one  of  his  literary  executors,  and  in  1870  he  pub- 
lished a  life  of  that  great  statesman.  He  was  a  prolific  author.  Among 
his  published  works  were  a  history  of  the  constitution  of  the  United 
States,  a  treatise  on  copyrights,  a  book  on  admiralty  law,  "  Equity  and 
Precedents,"  and  a  biography  of  James  Buchanan. 

In  1803  Mr.  Curtis  removed  to  New  York.  In  that  city  he  con- 
tinued until  his  death  in  the  front  rank  of  practitioners  and  jurists. 
He  was  counsel  in  many  patent  suits  of  historical  importance,  among 
them  the  Colt  revolver  suits,  the  Goodyear  rubber  cases,  and  celebrated 
sewing-machine  litigations.  He  argued  numerous  imj)ortant  war  claim 
cotton  cases.     In  1888  he  gave  up  his  active  practice,  but  continued  to 


290  HISTORY   OF  THE  BENCH   AND   BAR   OF   NEW   i'ORK 

take  a  hearty  interest  in  constitutional  and  miscellaneous  questions, 
and  was  a  frequent  contributor  to  the  press. 

Mr.  Curtis  never  held  public  office,  except  as  a  justice  of  the  peace. 


A  COSTA,  CHARLES  M.  (born  on  the  island  of  Saint  Thom- 
as, West  Indies,  May  5,  1837 ;  died  in  New  York  City,  June 
22,  1890),  was  educated  in  Europe  and  in  New  York  City, 
graduating  from  Columbia  College  in  1855.  He  began  the 
study  of  the  law  in  the  office  of  Alexander  Hamilton,  Junior,  was  ad- 
mitted to  the  bar  soon  after  attaining  his  majority,  and  practiced  for  a 
time  as  an  assistant  to  Lorenzo  B.  Shepard.  Almost  at  the  beginning 
of  his  career  he  was  retained  in  an  important  case  which  took  him  to 
Belgium,  and  the  success  he  achieved  in  that  employment  was  the 
foundation  of  his  reputation  as  an  admiralty  lawyer.  Afterward  he 
was  in  partnership  with  Oscar  Smedberg.  In  1869  he  took  the  vacant 
place  of  Honorable  Samuel  Blatchford  in  the  firm  of  Blatchford,  Sew- 
ard &  Griswold,  in  association  with  Clarence  A.  Seward  and  Burr  W. 
Griswold.  In  this  connection  he  became  charged  with  the  interests  of 
great  banking  institutions,  foreign  and  domestic,  and  of  railway  and 
other  corporations,  in  litigations  of  gravity  and  magnitude.  He  was  a 
very  accomplished  scholar,  took  a  lively  interest  in  social  and  educa- 
tional matters,  and  was  one  of  the  trustees  of  Columbia  College,  a  lec- 
turer in  its  law  school,  and  left  to  the  college  a  magnificent  bequest. 
He  was  an  original  member  of  the  Association  of  the  Bar.  His  friend. 
Justice  Edward  Patterson,  in  a  sketch  of  him  in  the  "  Memorial  Book  " 
of  the  Bar  Association,  speaks  thus  of  his  professional  characteristics : 

As  a  lawyer  Mr.  Da  Costa  was  conspicuous  for  his  learning,  sagacity  and  practical 
wisdom;  as  an  advocate  he  was  forcible,  persuasive,  and  singularly  able  in  the  statement 
of  a*  case.  While  from  the  necessities  of  his  large  practice  lie  kept  himself  well  ac- 
quainted with  the  current  decisions  of  the  courts,  he  was  not  a  mere  case  lawyer. 
He  was  one  of  those  who  verified  the  saying  of  Sir  Thomas  Browne  that  "  he  can  do 
most  with  books  who  can  do  much  without  them."  His  arguments  were  founded 
upon  a  ripe  knowledge  of  the  principles  and  philosophy  of  the  law,  a  clear  insight 
into  the  just  relation  and  bearing  of  things,  an  abounding  common  sense  and  well- 
balanced  judgment;  and  his  methods  were  those  of  an  accomplished  artist.  He  was 
accurate  in  discriminating  as  to  precedents,  and  was  not  content  to  rest  his  case  on 
seeming  resemblance  of  authorities.  He  had  what  is  called  the  legal  instinct.  He 
saw  at  once  all  that  was  involved  as  the  essence  of  a  cause.  The  keenness  of  his 
mental  vision  was  remarkable,  and  all  that  he  saw  fell  into  an  orderly  and  method- 
ical arrangement  and  was  produced  con.scientiously,  logically,  and  with  complete- 
ness not  overburdened  with  superfluity  or  useless  elaboration,  and  in  a  manner 
plain,  concise,  direct,  and  clear  as  crystal.  To  this  were  added  graces  of  style  and 
manner  peculiar  to  himself,  a. soft  and  pleasing  voice,  a  sunny  cheerfulness,  a  never- 
failing  courtesy.  As  was  said  of  him  in  another  place,  his  presence  in  a  cause  was 
always  welcome.  He  had  the  absolute  confidence  of  the  court,  and  he  was  regarded 
by  both  bench  and  bar  as  one  of  the  ablest,  most  upright,  and  honorable  of  the  lead- 
ing members  of  the  profession. 


iiisiouv  OF   riiK  HKNcii  AM>  n\ii  OK  .m;\v   voi;k  'JIM 

A\KNP()RT,  .JOHN  ALFRED  (bom  in  Fninrestown,  New 
ll;mii)sliii(',  Ft'bnuiry  7,  ISUi;  died  in  ('iiiciiiiiati,  Oliio,  Mjiv 
.'!,  lSi)()),  was  (les('(Mul('(l  from  a  (lisliiiuiiishcd  \(nv  Fn^daiid 
laiuily.'  lie  was  graduated  from  'Sale  Collcgo  in  1K«;1,  and 
for  about  four  years  was  professor  of  uuitlieiuatics  in  the  United  States 
Naval  Academy  at  Newport,  Rhode  Islaiul.  Afterward  he  made  a 
tli<)r()u<i:h  study  of  the  law  at  Harvard  and  at  Heidelberg  University, 
(J(>rniany,  and  in  1870  he  became  one  of  the  law  firm  of  Gray  &  Daven- 
port in  New  York.  After  its  dissolution  by  the  ehnation  of  its  senior 
member  to  the  bench  of  the  Court  of  A])peals  (1S88)  he  organized  the 
firm  of  Davenport,  Smith  &  Perkins.  He  was  regarded  as  one  of  the 
forenu)st  in  the  i)rofession  as  a  chamber  counsel,  but  his  sensitive  na- 
ture and  feeble  health  prevented  him  from  taking  a  prominent  place 
as  an  advocate.  

]AYIES,  HENRY  EBENEZER  (born  in  Black  Lake,  Saint 
Lawrence  county,  New  York,  February  8,  1895  ;  died  in  New 
York  City,  December  17,  1881),  was  the  son  of  Thomas  John 
Davies  and  Ruth  Foote,  and  w^as  the  fifth  in  descent  from 
the  American  ancestor,  John  Davies,  who  came  to  America  and  settled 
in  Litchfield,  Connecticut,  in  1735.  His  English  ancestry  goes  back  to 
Robert  Davies,  of  Gwysany  Castle  in  the  parish  of  Mold,  Flintshire, 
England  (born  lOOG),  a  staunch  loyalist,  high  sheriff  of  Flintshire,  and 
knight  of  the  Royal  Oak,  who  derived  an  unbroken  descent  from  the 
famed  Cymric  Efell,  lord  of  Eylwys  Eyle,  who  lived  a.d.  1200,  and  was 
seventh  in  descent  from  Rodic  Maur.  His  American  ancestor  brought 
him  considerable  possessions  and  soon  acquired  large  landed  interests, 
was  an  ardent  churchman,  established  the  first  episcopal  society  in 
Litchfield,  and  was  a  leader  in  the  affairs  of  the  colony.  Subsequently, 
during  the  war  of  the  Revolution,  the  political  and  religious  faith  of 
the  Davies  family  entailed  disastrous  consequences  upon  its  members, 
wresting  from  them  their  large  holdings,  and  leaving  both  the  grand- 
father and  father  of  Henry  Ebenezer  Davies  entirely  dependent  upon 
their  own  exertions.  His  father,  meeting  with  business  reverses,  in 
1799  removed  to  the  shore  of  Black  Lake,  then  an  unbroken  wilder- 
ness, built  a  log  cabin  with  a  camp  of  Indians  for  his  sole  neighbors, 
and  commenced  life  over  again.  A  thriving  and  populous  community 
rapidly  grew  about  him,  the  point  proving  favorable  for  immigration, 
and  he  soon  became  not  only  comfortably  situated,  but  prominent  in 
the  affairs  of  the  community.;^ He  w^as  for  ten  years  sheriff  of  Saint  Law- 
rence county  and  for  several  years  served  as  county  judge. 

Such  was  the  early  environment  of  Henry  Ebenezer  Davies,  fourth 

*  His  American  ancestor  was  Reverend  John  Daven-  five   years,  and   judge  of  probate  and  of  the  county 

port,  who  came  to  this  country  in  1G38,  and  was  eminent  and  Common    Pleas  courts.      His   great-grandfather, 

in  the  congregational  deuomination  of  Connecticut.  An-  John  Davenport,  was  a  representative  in  congress  from 

other  of  his  ancestors  w;is  Judge  .\braliam  Davenport,  a  1T99  for  eighteen  years, 
member  of  the  Connecticut  legislature  for  over  twenty- 


292  HISTOKY   OF  THE   BENCH   AND   BAR   OF  NEW  YORK 

child  and  third  son.  Up  to  fourteen  years  of  age  he  followed  the  ordi- 
nary pursuits  of  a  country  life  full  of  rugged  sport  and  farm  work, 
varied  by  such  attendance  at  common  school  as  the  neighborhood  per- 
mitted. An  intimate  companion  was  a  young  Indian  boy  from  whom 
he  learned  much  of  the  language  and  customs  of  that  people.  At  the 
age  of  fourteen  his  father  placed  him  with  the  family  of  Judge  Alfred 
Conkling,  of  Canandaigua,  New  York,  to  obtain  a  broader  education 
than  the  facilities  nearer  home  afforded,  and  specially  to  prejjare  him 
for  his  chosen  profession  of  the  law.  With  Judge  Conkling  he  not 
only  completed  his  preparatory  legal  education,  but  pursued  substan- 
tially the  course  afforded  by  the  college  of  the  day.  Coming  of  age  he 
was  admitted  to  the  bar  at  Albanj^  in  April,  1826.  He  commenced 
practice  in  Buffalo,  then  a  small  village  on  the  western  frontier.  A 
case  involving  the  right  of  way  along  the  river  bank  soon  arose,  which 
gave  him  his  initial  start.  The  contention  was  between  the  owners  of 
uplands  along  Niagara  river,  who  claimed  the  right  to  extend  their 
warehouses  to  the  river's  edge  for  convenience  in  loading  and  unload- 
ing vessels,  and  the  other  inhabitants  who  claimed  a  right  of  way  along 
the  bank.  Mr.  Davies,  retained  on  the  popular  side,  sought  to  estab- 
lish the  latter  claim  by  the  testimony  of  the  older  inhabitants  and  of 
Indians  who  still  remained  in  the  vicinity.  He  summoned  among 
others  the  celebrated  Seneca  chief,  Red  Jacket.  His  array  of  testimony 
won  the  jury  and  the  case.  This  victory  gave  him  immediate  high  pro- 
fessional standing  and  made  him  city  attorney  the  following  year.  In 
1829  he  removed  to  New  York  City,  entering  into  partnership  with  his 
uncle,  Samuel  A.  Foote. 

Among  other  large  corporations  which  this  firm  represented  was 
the  Erie  Railroad  Company.  To  the  advice  of  Foote  &  Davies  was  due 
largely  the  successful  progress  and  completion  of  a  work  stupendous, 
for  that  early  period,  in  railroad  construction.  Upon  the  retirement 
of  his  uncle  from  active  practice  in  1848  he  entered  into  partnership 
with  Honorable  William  Kent,  a  son  of  the  distinguished  chancellor 
and  an  ex-judge  of  the  Supreme  Court.  In  this  connection  he  con- 
tinued until  1853,  when  he  formed  the  firm  of  Davies  &  Scudder,  with 
Mr.  James  C.  Carter  as  managing  clerk.  When  Mr.  Davies  became  a 
justice  of  the  Supreme  Court  two  years  later  the  firm  of  Scudder  & 
Carter  succeeded  to  his  business. 

In  politics  Mr.  Davies  was  a  whig,  with  a  high  reputation  as  a  plat- 
form orator.  In  1840  he  was  elected  assistant-alderman  for  the  15th 
ward  and  two  years  later  was  chosen  alderman.  He  was  also  at  this 
time  chairman  of  the  committee  on  the  celebration  of  the  introduction 
of  the  Croton  water  into  the  city. 

From  1850  to  1853  was  a  period  of  laborious  activity  for  Mr. 
Davies.  He  was  then  corporation  counsel,  and  the  enormous  work  in- 
volved in  the  opening  of  new  streets  demanded  by  the  rapid  gi'owth  of 
the  city  almost  constantly  occupied  him.     His  successful  defence  of 


lIIsroKY    OF    IIIK    UK.NCII    AM)    ItAi:    (»1'    NKW    VOKK  'J'Xi 

(^x-^fayor  Cornelius  W .  L:i\vi(Mic('  in  suits  for  recovery  of  daniu^^es 
l)i()uglit  for  l)lo\vin<;  up  huildinys  in  the  path  of  the  disastrous  lire 
of  DeceniiMM',  IHIC),  to  stay  the  confla^rafion,  was  also  arnon;;  his  ini- 
porlant  professional  labors  during  this  i)eriod.  Soon  after,  in  addition 
to  his  ])r()fessionaI  work,  he  contributed  a  compilation  of  the  statutes 
of  the  state  relating  to  the  City  of  New  York  and  its  ancient  and  mod- 
ern charters  at  the  request  of  the  common  council  of  New  York. 

In  the  summer  of  IS-V)  Mr.  Davies  made  the  tour  of  Europe  in  com- 
l)any  with  ex-President  Fillmore,  with  whom  he  had  formed  an  inti- 
mate acquaintance  in  his  early  practice  at  Buifalo.  On  his  return  he 
was  elected  justice  of  the  Supreme  Court,  to  till  the  vacancy  made  by 
the  death  of  .Judge  R.  II.  Morris.  His  seat  was  contested,  on  the 
ground  that  no  notice  of  the  vacancy  had  been  filed  with  the  sheriff  by 
the  secretary  of  state.  Mr.  Davies  was  eventually  confirmed  in  his 
jiosition  by  the  Court  of  Appeals.  During  his  term  of  office  occurred 
the  celebrated  murder  trials  of  Cancemi  and  Burdell,  at  which  he  pro- 
sided,  lie  also  reaffirmed  in  the  general  term  the  decision  of  Mr.  Jus- 
tice Paine  in  the  case  of  Lemmon  cs.  the  People,  which  maintained  the 
position  that  persons  held  in  slavery  became  free  when  brought  into 
the  State  of  New  York,  and  in  which  Chester  A.  Arthur,  then  a  fiedg- 
ling  practitioner,  was  one  of  the  counsel  for  the  slaves. 

In  the  panic  of  1857,  when  the  banks  of  New  York  City  were 
obliged  to  suspend  specie  payments  and  were  in  imminent  peril  of  being 
placed  in  the  hands  of  receivers  on  the  ground  of  insolvency,  Judge 
Davies  called  a  meeting  of  the  judges  of  the  Supreme  Court  of  the  1st 
and  2d  judicial  districts.  At  this  meeting  it  was  determined  that  a 
bank  should  be  considered  solvent  which  was  able  to  pay  all  its  debts, 
although  it  might  have  suspended  specie  payments  for  a  time,  and  that 
when  thus  solvent,  while  its  officers  were  acting  in  good  faith,  no  re- 
ceiver should  be  appointed.'  This  averted  the  danger  and  saved  the 
entire  financial  community  from  utter  prosti'ation. 

In  1859  he  was  elected  to  the  Court  of  Appeals  for  a  term  of  eight 
years,  during  the  last  two  years  of  wdiich  he  served  as  chief-judge. 
Among  the  volumes  of  decisions  rendered  during  this  period  may 
briefly  be  mentioned  Kortright  vs.  Cady,'  maintaining  that  the  tender 
of  the  amount  due  on  a  mortgage  destroys  the  lien  of  the  instrument ; 
the  Peoj^le  I'S.  the  Canal  Appraisers,'  where  the  subject  of  navigable 
streams  is  elaborately  and  learnedly  discussed  and  determined  ;  Dela- 
field  rs.  Parish/  discussing  testamentary  capacity  ;  and  that  product 
of  great  research  and  exhaustive  study,  the  opinion  in  the  case  of  the 
Metropolitan  Bank  t\s.  Van  D^'ck,'  which  sustained  the  legal  tender 
acts  of  the  general  government. 

At  the  expiration  of  his  office  Judge  Davies  was  offered  a  renomi- 
nation  by  both  parties,  which  would  have  resulted  in  a  unanimous 

■  ,-.  Abbott's  Pr.  R.,  Ui.  '  3.3  New  York,  461.  »  37  New  York,  400. 

-  21  New  York.  ^43.  *  i5  Now  York,  9. 


294  HISTORY   OF  THE  BENCH   AND   BAR   OF   NEW  YORK 

election,  but  returned  to  the  practice  of  law  in  New  York  City,  having 
as  partners  Judge  Noah  Davis,  until  the  election  of  the  latter  to  the 
Supreme  Court  in  1872,  and  his  son,  Julien  Tappan  Davies.  Mr. 
Davies  Avas  counsel  for  the  Mutual  Life  Insurance  Company,  as  also  for 
other  large  corporations,  but  devoted  himself  mainly  to  chamber  prac- 
tice and  to  service  as  referee.  His  devotion  to  his  profession  was  such 
that  up  to  the  day  before  his  last  illness  he  sat  for  many  hours  as  one 
of  the  commissioners  appointed  to  investigate  the  practicability  of  con- 
structing the  Broadway  arcade  railroad. 

Judge  Davies  was  a  director  of  the  Institution  for  the  Instruction 
of  the  Deaf  and  Dumb  for  a  long  period.  The  last  year  of  his  life  he 
acted  as  president.  In  1870  he  accepted  the  office  of  dean  of  the  law 
school  of  the  University  of  the  City  of  New  York,  which  he  held  until 
the  time  of  his  death.  This  university  conferred  upon  him  the  title  of 
LL.D.,  as  did  also  Amherst  College. 

On  July  11, 1835,  he  married  Rebecca  Waldo  Tappan,  of  Boston, 
Massachusetts,  and  he  was  father  of  a  large  family.  He  died  in  the 
City  of  New  York,  December  17,  1881,  and  left  four  sons  and  two 
daughters  surviving  him. 

The  tribute  of  one  who  knew  him  best  says  : 

Judge  Davies  was  conspicuous  during  liis  long  and  busy  life  for  sterling  integ- 
rity and  devotion  to  the  interests  committed  to  his  charge.  His  capacity  for  labor 
was  prodigious  and  sustained  by  a  constitution  of  iron  that  gave  him  enormous 
powers  of  endurance.  He  was  genial  in  manner  and  friendly  with  all  men.  His  sole 
pleasure  was  the  professional  one  of  a  game  of  whist.  Temperate,  indeed  almost 
abstemious  in  his  habits,  simple  in  his  tastes,  earnest  in  his  professional  diities,  the 
two  leading  motives  of  his  life  were  devotion  to  duty  and  love  of  his  family.  True 
to  the  church  of  his  ancestry,  and  following  in  their  lead,  he  gave  to  Saint  Luke's 
church,  at  Matteawan,  in  Dutchess  county,  the  land  upon  Avhich  its  edifice  is  erected. 
Under  the  shadow  of  its  eaves  he  rests— wife,  children,  and  grandchildren  reposing 
around  him.  The  memory  of  his  pure,  strong,  loving  spirit  is  the  most  precious 
heritage  of  his  living  descendants. 


AYAN,  Charles  (born  in  Amsterdam,  New  York.  July  10, 
1792  ;  died  in  Lowville,  New  York,  December  25,  1877),  was 
the  son  of  a  farmer,  and  after  receiving  an  elementary  edu- 
cation taught  school  and  studied  law,  being  admitted  to 
practice  at  Lowville.  He  was  prominent  among  the  lawyers  of  that 
part  of  the  state,  and  also  was  active  in  politics.  He  served  in  the 
state  senate  from  1827  to  1829,  becoming  its  president,  acting  lieu- 
tenant-governor, and  ex  officio  president  of  the  Court  of  Errors.  He 
was  a  democratic  member  of  congress,  1831-33,  a  member  of  the  assem- 
bly, 1835-36,  and  district-attorney  of  Lewis  county,  1840-15. 


IIISTOIIY    OK    Till':    1!I:N('II    and    IJAIt    or    NKW    YOltK 


L>!>: 


EAX,  A^r()S  (horn  in  Riirnanl,  V(M-inont,  February  Ui,  lH(i:{; 
(lied  .lanuary  'JO,  18(58),  was  f^iadiiatcd  at  I'nion  (JoII('<f('  and 
u])on  his  a(hnission  lo  (lie  bar  filtered  into  a  l(^^al  copai'tncr- 
shij)  with  Azor  Tabor.  He  gained  a  very  distinguislicd  rcpii- 
tion  equally  as  an  advocate,  a  consultin'?  lawyer,  a  law  writer  and  a 
lecturer  on  law  and  jjroinoter  of  le<;al  education.  His  legal  works, 
which  are  of  high  authority,  include  a  "Manual  of  Law"  (18:^8), 
"Medical  .Jurisprudence"  (I8r)4),  and  "Bryant  and  Stratton's  Com- 
mercial Law."  Among  his  oth(M-  works  of  importance  are  "  Lectures 
on  Phrenology"  (18Mr)),  '' Tliilosophy  of  Human  Life"  (1839)  and  an 
uncompleted  "  History  of  Civilization  "  (7  vols.,  Albany,  1809-70).  He 
was  the  founder  of  the  Young  Men's  Association  of  Albany,  tilled  the 
chair  of  medical  jurisprudence  in  the  Albany  Medical  School  from  its 
organization  in  1839,  and  was  one  of  the  original  professors  in  the 
Albany  Law  School. 


EAN,  GILBERT  (born  in  Plea.sant  Valley,  Dutchess  county, 
New  York,  August  U,  1819  ;  died  in  Poughkeepsie,  October 
12,  1870),  w^as  graduated  in  1841  at  Yale  College  and  was 
admitted  to  the  bar  in  Connecticut  and  later  (1844)  in  New 
York.  He  practiced  for  a  number  of  years  in  Poughkeepsie,  during 
which  time  he  served  a  term  in  congress  (1851-53).  Re-elected  to  that 
body,  he  resigned  to  become  a  justice  of  the  Supreme  Court  of  the 
state  by  the  appointment  of  the  governor  in  1854.  His  service  on  the 
bench  was  brief,  but  during  the  latter  part  of  it  he  acted  as  a  judge  of 
the  Court  of  Appeals.  He  retired  in  1855  and  removed  to  New  York, 
where  he  practiced  law  for  the  remainder  of  his  active  life. 


ELAFIELD,  LEWIS  LIVINGSTON  (born  in  New  York  City, 
November  3, 1834  ;  died  there,  March  28, 1883),  was  descended 
from  ancestors  distinguished  in  the  annals  of  the  state  and 
the  country.  Among  them  were  William  Smith,  judge  of  the 
Province  of  New  York  ;  Francis  Lewis,  one  of  the  signers  of  the  decla- 
ration of  independence  ;  Morgan  Lewis,  chief-justice  and  governor  of 
New  Y^'ork  ;  Chancellor  Livingston,  and  Edward  Livingston,  author  of 
the  code  of  Louisiana.  He  received  a  careful  preparatory  education, 
and  in  180,5  was  graduated  from  Columbia  College  second  in  his  class. 
He  immediately  entered  upon  the  study  of  the  law^  in  the  office  of  his 
kinsman,  Alexander  Hamilton,  Junior,  and  was  admitted  to  the  bar 
December  18,  1857.  He  first  practiced  as  a  member  of  the  firm  of 
Crane.  Robinson  &  Delafield,  but  separated  from  it  and  practiced  alone 
until  his  death.  He  soon  acquired  a  valuable  practice,  and  became 
specially  versed  in  the  law  of  real  estate,  of  trusts  and  of  wills,  one  of 
the  earlier  cases  in  which  he  acted  as  junior  counsel  being  the  famous 


296  HISTORY    OF   THE  BEN^CH   AND   BAR   OF   NEW   YORK 

Parish  will  case.  In  later  years  he  was  the  counsel  of  numerous  large 
corporations.  In  behalf  of  one  of  these,  the  Roosevelt  Hospital,  he 
succeeded  in  forever  delivering  the  City  of  New  York  from  those 
dangerous  nuisances,  the  abattoirs.  In  1874  he  was  selected  as 
attorney  to  the  United  States  Cable  Company,  and  in  1879  as  attorney 
to  the  French  Cable  Company. 

Mr.  Delafield  was  a  man  of  high  character,  energetic,  public  spir- 
ited, and  devoted  to  good  causes.  He  never  accepted  public  office,  but 
in  the  last  years  of  his  life  was  almost  constantly  prominent  before 
the  public.  He  was  one  of  the  founders  of  the  Association  of  the  Bar 
of  the  City  of  New  York,  and  took  u  conspicuous  part  in  some  of  its 
notable  undertakings  and  proceedings.  He  co-operated  heartily  and 
influentially  in  the  anti-Tweed  crusade  and  the  movement  of  the  Bar 
Association  for  the  removal  of  the  corrupt  judges.  Afterward  he  was 
a  leader  in  the  crusade  inaugurated  by  the  association  for  the  reform 
of  notorious  abuses  in  the  city  offices,  and  on  its  behalf  delivered  a 
noteworthy  address  to  the  committee  of  the  legislature  which  had  in 
charge  the  bill  for  the  abolition  of  the  fee  system.  He  was  chairman 
of  the  Bar  Association's  committee  on  law  reporting,  and  wrote  the 
exhaustive  report  of  that  committee  exposing  the  prevalent  defects  in 
law  reports  and  suggesting  a  scheme  for  an  official  "council  of  law 
reporting."  Al  though  the  project  was  not  adopted,  the  decided  im- 
provement in  the  reports  that  have  since  been  observable  are  in  large 
measure  the  direct  result  of  his  efforts.  He  was  also  chairman  of  the 
association's  committee  on  admissions  to  the  bar,  and  to  the  clearness 
and  vigor  with  which  he  presented  his  views  to  the  courts  and  the 
legislature  the  adoption  of  reformed  standards  for  admission  was  in 
great  part  due. 

He  was  earnestly  interested  in  the  cause  of  preventing  cruelty  to 
children,  and  was  counsel  to  the  society  organized  for  that  purpose. 
He  conducted  the  prosecution  of  the  padrone  Ancorata,  which 
resulted  in  putting  a  stop  to  the  barbarous  traffic  in  Italian  children ; 
and  he  prosecuted  successfully  the  infamous  Reverend  Edward 
Cowley,  of  the  "Shepherd's  Fold."  He  compiled  a  volume  of  laws 
relating  to  childi'en. 

^E  LANCE Y,  JAMES  (born  in  New  York  City,  November  27, 
1703  ;  died  there,  July  30, 1760),  was  the  eldest  son  of  Etienne 
l)e  Lancey,  who  fled  from  France  to  Holland  after  the  revoca- 
tion  of  the   edict  of   Nantes,   and    in   1686   emigrated    to 
America.'     He  was  given  an  excellent  education  by  his  father,  being 

>  Etienne  (Stephen)  Dc  Lancey  was  one  of  the  most  prominent  in  city  and  colonial  affaire,  and  was  a  vory 

notable  New  Yorkers  of  hie  period,     lie  brought  with  public-spirited  citizen.     Ili.s  old  house,  built  in  17W), 

him  to  America  a  portion  of  the  family  jewels,  and  wilh  afterward  became  F'raunce"8  tavern,  a  famous  ri-eort  of 

the  proceeds  of  their  sale  embarked  in  mercantile  enter-  the  latter  part  of  the  century,  in  which  Washinston  bade 

prises,  in  which  he  amassed  a  fortune  nf  £100,000.     He  farewell  to  his  ofllcerg.  j 
married  a  daughter  of  Stepliauua  Vau  Uortlandt,   was 


By  the  Honourable 
JAM^S    DE    LA  MCE 


Jits  Majejlfs   Li 
over  the  Proving 
in  America. 


W 


stenant'Gcvernor  and  Commanar 
^New-York,  and  the  Territor 


r,    Efq; 

in  Chief  y  in,  and 
es  dependingit  hereon 


A     Proclamation. 


HERE  AS' it  appears,  That  certain  Perfons  refiding  on  flncar  the  Eaftern  Borders  of 

Provirtt,  have  entcrc<i  imo  a  Combination  to  difpoffefs  Robin  fMniJItn,  Jun.  Efq;  Proprietor  of  the 
Mannr  if  Lmngflon,  within  this  Province,  and  the  Tenanrt  hoWiftg  fiJcr  him,  of  the   Lands  comprifed 

Manor,  under  Prnence  of  Title  from  the  Oove*fimerifof  the  AJ*JJaLhuJw,  Bay,  si  alfo  of 

Indun  Pirchafe  lately  made  hj'  the  faidPerfons  j  altho'  (is  mott  nottircu?  ihai  the  /(.id  Manor  hath,  'til 
CTyJiPt^[|becii  peaceably  heW-^  enJij]fe*Hj,  the  foid  Koifr^^Livhig]^!,n,  j^.^'i^^^ti.t^ti,  for  Se»enty 


nji?ifc^i;.b)>,  I 


their  Claim.  Nolwithfttndine  which  clear  and 
ith  their  former  Intrufions  on  His  Majefty's  Lands  w  ihi 
ing  to  corrupt  and  turn  Mr.  Living/en's  own  I'cnar 
;il  within  a  few  Years  held  Lands  as  Tenants  uiidif 
:e  of,  and  fet  up  a  pxetcnded  Right  againft  him,  under 
^Purchafe;  by  which  illegal  Proceedings,  fuppottcd  with 
of  bis  Majefty's  Subjects  lofl,  and  private  Property  i 
■"     '     ^  order  to  profccute  their  unjuft  Uefigns 


linded  Perfons, 


'^.**(S5'rt 


nly-.; 


Right,  on  the  Part  of  this  (iovctn- 
the  fame,  firft  begin  to  carry  their 

againrt  hini,  m  which  ihey  fo  far 
and  paid  their  Rents  to  him,  now 
Govcrnmeni  of  the  Majfachu/etti 
line,  the  Courfe  of  Juftice  hath. 
rlngeu  and  greatly  injured.  And 
111  the  7th  Day  of  Aljy  lad,  armed 


nd  M  the  Diftance  of  not   more  than 


the  faid  Government  can  legally  f 

ment,  the  faid  Perfons,  not  contc 

Defigrs  into  Execution,  by    cndo 

fijcceeded,  that  feveral  Perfons,  \ 

keep  Pofleffion  of  the  Lands  in  D^ 

Bay,  and  the  aforementioned  Indu 

been  obftruSed,  the  Lives   of  fev 

Whereas  Thirty  One  of  fuch  evil 

and  riotoufly  ailembled  thcmfclvcs 

Eighteen  Miles  from  Hud/oni  Riv 

VaigtUrr,  mi  bis  Brother,  faid 

riotO'jO^  aflembled,  were  commar 

Jafiicet  of  the  Peace,  two  Conftabl 

and  t^ifperie  the  Rioters  ;  four  only 

were  Loop  Holes,  fired  throug' 

ao  Hour  theieaitcr,  and  anothi 

may  be  to  P-oceeding»,  the  Confc 

be  produSive  of  theworft  Evils  to 

unhappy  Controverfy  Ihall  be  f^tS  in  a  legal  Courfe  ;  I  HAVE 'thought  fit,  with  the  Aljca  of  "His  Majcfty's  Council 
:  thi»  Proclamation,  Hereby  in  I    s  Maiefty'sName,  ftriiaiy  enjoining  all  His  Majefty's  gnoKubjcas  in  this  Province,  to  Cbi 

bear  and  refrain  from  fcch  violent  an    gijjuft  Proceedings,  as  every  Inftance  of  that  Nature  will  Kpuniflied  with  the  utmoft  Rigoui 

of  the  Law.    And  that  the Offende    before  named  may  be  brought  to  Juftue,  the  Sheriffs  of  (■  Counties  of  .///W?  and  Ok/Ww/i 

aind  all  other  Officers  thc'ein,  areh<     by  commanded  and  required  to  apprehend  the  faid  Xw^rAi^'i   Darlfie,  Jobanntt  Retfe,  Hendria 

Brufu,  Jifrfh  VangiUtr,  Samutl  Ti.     r,  Ehtnmr  Taylcr ,  and  Jndria  J.  Rut,  and  all         "       "^       '    ■         •  "■       -  .      -i-. 

appear  to  have  been  aiding  or  abetti     l,lhc  fiid  06fenders  in  the  Riot  aforefaid  ;  and  them 

committed,  in  fafe  Cuftody,   in  the  (    wnty  Goal,  until  delivered  by  due  Courfe  of  Law  :   And 

keep  in  fafe  Cuftody  all  and  every  <    «  Perfon  and  Perfons  who  fliall  hereafter  be  guilty  of  I 

And  all  His  Majefty'j  Subjefls  in  t    ifaid  Counties  o(  Albany  and  Duuhcfiy  are  to  give  due  AlTill 

refpedive  Counties,  whoare  hereby    |ipowercd  and  required,  ifneceflary,   to  fummonthe  Port 

putting  the  Premifes  Iti  Execuuon.        ' 


Taikhanick,  at  the  Houfe  m{  Jonathan  Dariie, 

ong   whom  were  the   faid  Jonathan  Darbit,  alfo  Joli^ts  Reift,  Hindruk  Bivfii,  J^frph 

JnJriri  fangtldtr,    Samutl  Taykr,  Ebtnntr  Taylor,      k  J'idru,  J.  Rt<J, ,  and  beini;  fo 

to  difperfe  by  the  Deputy  Sheriff  of  the  Counry,  in  the    ffefcnce   ot  one  of  His  Majclly's 

and   other  Perfons  who  came  thither  with  the  laid  Robi    %ivmgjhn,  to  fupprefs  the  Riot, 

whom  went  off,  the  others  (hutting  thcmfelves  up  in  the     M /)<2ri/s  Houfe,  in  which  ^thcte 

d  before  they  difperfcd,  feveral  were  wounded  on  bo  i  Sides,  one  of  whom  died  in  about 

Time  after,  of  the  Wounds  they  then  received.     IN  Ordi  :therefore  to  put  a  Slop  as  much  as 

thereof  have  already  been  fatal  to  fome,  and  wh'ch    if  not  timely  prevented,  may  ftill 

o  •>'{"  ;  and  to  eftablirti  and  keep  up  Peace  and  a  good  Undi  ftandlng  among  the  Borderets,  till 

tiU  unha£pyControverfy  Ihall  be  fj^  in  a  legal  Courfe  :  "  "  '        "     ' •  ~  .    -^ 


of  their  Affociates,   who  fiiall 

d  cvJJr  of  them  to  keep,  or  caufe  to  bo 

Manner,  to  apprehend  and 

il  riotous   and   illegal    PraiSiccs. 

jce  to  the  faid  Sheriff)  within  their 

i  whole  Power  of  the  County,  for 


C I  y  EN  under  my  Han,  mi  Seal  at  jlnns,  at  Fort-Geotge,  in  the  City  of 
June.  One  Thoufani  S  ten  Hundred  and  Fifty  Seven,  in  the  Thirtieth  Year 
Lord  GEORGE  the  i  -end,  by  tbi  Grace  of  GOD,  »/ Great-Bricain,  Frar 
ef  the  Faith,  andfofo   b. 


By  Hij  Honour's  Command, 

Cw.  Bairjar,  Dcp.  in  f 


JAMES 


;V/-York,  the  Eighth  Day  «f 
the  fieign  of  our  Sever eign 
and  Ireland,  King,  Defender 

)ELANCEV. 


GOD  Save  the  KllNG. 


'^■^  JiA/mji^^C,^^/ri^ 


298  HISTORY    OF  THE   BENCH  AND   BAK   OF  NEW   YORK 

graduated  from  Corpus  Cliristi  College,  Cambridge,  England,  He 
pursued  legal  studies  in  the  Inner  Temple,  London,  was  admitted  to 
the  bar,  and  in  1725  returned  to  New  York.  In  1729  he  became  a 
member  of  the  council.  He  was  the  chief  framer  of  the  Montgomerie 
charter  of  1730,  and  in  recognition  of  his  services  he  was  presented 
with  the  freedom  of  the  city,  being  the 
first  person  to  enjoy  this  distinction. 
In  1731  he  received  the  appointment  > 
Judge  of  the  Supreme  Court,  and  two 
years  later  (September  14,  1744)  was  appointed  chief-justice  to  succeed 
Lewis  Morris,  removed.  In  this  office  he  continued  until  his  death. 
In  addition  to  the  dignity  of  chief-justice,  he  was  made  lieutenant- 
governor,  the  king's  commission  bearing  date  October  27,  1747.  But 
having  become  involved  in  a  quarrel  with  Governor  Clinton,  the  latter 
withheld  the  commission  and  urged  his  removal  as  chief-justice.  The 
home  government,  however,  refused  to  comply  with 
this  recommendation,  and  in  1753,  Clinton  having 
been  superseded,  the  commission  was  finally  deliv- 
ered to  him  and  he  became  acting  governor.  He 
presided  over  the  deliberations  of  the  colonial  con- 
gress of  1754  (the  first  general  congress  of  the  col- 
onies), held  to  consider  methods  of  common  defence 
against  the  French  and  to  conciliate  the  Indians. 

UE    LANCEY    ARMS.  -itti     •■,  .  i  nil 

While  acting  as  governor  he  granted  the  charter 
of  King's  College,  now  Columbia  College  (October  31,  1754).  Being 
relieved  of  the  duties  of  governor  by  the  arrival  of  Sir  Charles  Hardy, 
who  had  been  appointed  to  that  office  (1755),  he  devoted  himself  for  a 
time  entirely  to  his  judicial  functions,  but  from  1757  until  his  death 
he  again  exercised  the  powers  of  governor.  As  chief-justice  and 
governor  he  left  a  high  reputation  for  learning  and  ability. 

Judge  Charles  P.  Daly  has  written  the  following  estimate  of 
Chief-Justice  De  Lancey  :  ' 

In  legal  learning  he  was  inferior  to  several  prominent  lawyers  of  the  time,  hut 
he  had  remarkahle  natural  abilities,  upon  which  he  depended,  as  he  read  but  little, 
and  was  very  averse  to  writing.  Upon  the  bench  he  applied  himself  closely  to  the 
matter  before  him,  and  having  a  very  retentive  memory,  acute  pei-ception  and  a 
sound  judgment,  he  was  enabled  to  dispose  of  elaborate  cases  with  great  readiness, 
and  to  the  general  satisfaction  of  the  bar.  Whatever  he  had  read  or  bad  acquired 
in  the  way  of  legal  learning,  in  the  course  of  his  experience,  he  could  produce  upon 
the  instant.  Having  all  his  knowledge  thus  promptly  at  command,  and  with  a 
mind  so  constituted  that  it  lost  its  force  or  its  grasp  of  a  subject  in  proportion  as  he 
delayed  to  deliberate,  he  was  generally  ready  to  act  at  once;  his  first  thoughts 
being  always  the  best,  expressing  himself,  whether  from  the  bench  or  in  the  halls 
of  legislation,  with  clearness,  brevity,  and  point.  As  a  political  manager  he  was 
intrepid,  prompt  and  sagacious,  fertile  in  expedients ;  in  critical  emergencies  baffling 
his  opponents,  and  attaining  his  end  with  consummate  tact  and  judgment. 

In  public  contests  he  was  a  master  of  the  arts  that  win  popularity,  and  as  a 

'  "  Historical  Sketch  of  tho  .Tiidicial  Tribunals  of  New  York,"  p.  49. 


IllSlOKV    OK 


!■:   KKNcii    AM)   i!Ai:  oT   m;\v   Y()I:K 


L>i)'.) 


ruler,  equally  a  master  of  the  more  diflicult  art  of  retaining'  it ;  for  lliout^li  a  stn)ii<,' 
conservative  in  liis  iK)Iitics.  and  fjenerally  opjjosed  to  the  popular  party,  no  man  in 
tlie  eolony  ever  worked  himself  so  fully  into  the  public  conlidence,  or  had  the  same 
amount  of  personal  inlluence.  lie  is  descril)ed  by  his  conlemi)orai'ies  as  remark- 
able for  his  convivial  qiuilities,  as  easy  of  access,  assiduous  in  the  dispatch  of  public 
business  and  steadfast  in  his  friendships.  It  is  to  be  rej^-retted  thai  he  marred  his 
otherwise  irivproachable  conduct  on  the  bench  by  ffivinj^  way,  in  political  cases  like 
that  of  Zenjfer,  to  the  feelings  of  a  partisan;  and,  involved  as  he  was  throughout 
his  long  career  iu  every  political  intrigue  and  party  movement,  his  character,  in 
other  respects,  has  not  escaped  without  reproach.  But  he  was  a  man  of  more 
integrity  than  he  received  credit  for  during  life;  and  when  the  government  was 
entrusted  to  his  hands,  he  administered  it  with  so  much  capacity,  and  with  so  single 
an  eye  to  the  general  welfare  of  the  province,  as  to  wring  a  reluctant  tribute  from 
his  enemies. 


R  LAJ^CEY,  JOHN  (born  in  New  York  City  about  1741  ; 
died  tliere  in  1821),  was  a  son  of  Peter  l)e  Lancey,  a  nephew 
ol"  the  chiel- justice  and  a  brother  of  James  De  Lancey,  the 
celebrated  loyalist  colonel  of  the  Revolution.  He  engaged 
in  the  profession  of  the  law  and  held  various  offices :  high  sheriff  of 
Westchester  county  in  1769  ;  member  of  the  assembly  from  170S  to 
1772,  and  again  from  1793  to  1795,  and  member  of  the  first  provincial 
council  for  the  City  of  New  York  (1775-76).  He  was  also  a  member  of 
the  general  committee  of  one  hundred  of  May,  1776.  Unlike  his 
brothers,  he  did  not  come  into  disfavor  on  account  of  attachment  to 
the  loyalist  cause. 


E  LANCEY,  STEPHEN  (born  in  New  York  City  about  1740  ; 
died  in  Annapolis,  Nova  Scotia,  in  ISOl),  was  a  brother  of 
the  preceding.  He  was  admitted  to  the  bar,  and  in  1765  be- 
came clerk  of  the  city  and  county  of  Albany,  then  embracing 
all  the  territory  west  of  the  Hudson  and  north  of  Ulster  county.  He 
afterward  served  as  recorder  of  the  city  of  Albany  and  as  a  commis- 
sioner to  treat  with  the  Indians.  From  the  beginning  of  the  revohi- 
tionary  troubles  he  was  a  loyalist.  In  1775  he  was  connected  with  the 
Albany  committee  of  safety.  In  1776  he  was  imprisoned  at  Hartford, 
Connecticut,  for  disaffection,  but  was  liberated  soon  after,  when  he 
went  to  New  York  City.  There  he  remained  until  the  British  evacua- 
tion in  1783.  Removing  to  Nova  Scotia,  he  was  prominent  in  that 
colony,  serving  as  a  member  of  the  council. 


ELAPLAINE,  ISAAC  CLASON  (born  in  New  York  City, 

October  27,  1817  ;  died  there  July  17,  lS66j,  was  a  brother 

of  John  Ferris  Delaplaine,  a  well-known   citizen   of  New 

York,  whose  will,  endowing  a  Delaplaine  Institute  for  the 

relief  of  the  friendless,  was  the  subject  of  a  recent  interesting  legal 


300  HISTORY   OF  THE   BENCH   AND   BAR   OF  NEW   TOKK 

controversy.  He  was  graduated  from  Columbia  College  in  1834  and 
became  a  successful  practitioner  at  the  New  York  bar.  He  served  in 
congress  from  1861  to  1863. 


EXIO,  HIRAM  (born  in  Rome,  New  York,  May  21,  1799 ; 
died  in  Utica,  November  5,  1871),  was  a  law  student  in  the 
office  of  Judge  Hathaway  at  Rome,  and  afterward  in  the 
office  of  Storrs  &  White  at  AVhitesboro.  In  1821  he  entered 
into  a  professional  coi)artnership  with  Wheeler  Barnes  at  Rome.  He 
was  appointed  district-attorney  of  the  county  to  succeed  Samuel  Beards- 
ley,  and  continued  in  that  office  for  a  number  of  years,  manifesting  sig- 
nal ability  in  the  discharge  of  its  duties.  Removing  to  Utica,  he  estab- 
lished a  law  firm  there  with  E.  A.  Wetmore.  In  1834  he  w  as  appointed 
circuit  judge  for  the  5th  circuit.  In  1836  he  formed  an  association 
with  Ward  Hunt.  He  was  appointed  a  judge  of  the  Court  of 
Appeals  in  1853  to  fill  a  vacancy,  and  was  twice  successively  elected 
to  that  office,  retiring  in  186G.  Beside  the  positions  enumerated,  he 
served  as  a  bank  commissioner  and  clerk  of  the  Supreme  Court,  and 
he  was  a  trustee  of  Hamilton  College.  In  politics  he  was  a  democrat, 
in  1860  he  voted  for  Lincoln,  and  during  the  war  was  in  full  sympathy 
with  the  policy  of  the  government.  In  1868  he  was  stricken  with 
paralysis,  from  the  effects  of  which  he  never  recovered. 

Hiram  Denio  belongs  in  the  foremost  rank  of  the  eminent  judges 
of  New  York,  and  his  opinions  are  frequently  quoted.  In  addition  to 
great  legal  learning  he  possessed  the  soundest  judgment.  His  personal 
character  was  remarkably  pure,  benevolent,  and  upright. 

In  conjunction  with  William  Tracy  he  edited  an  edition  of  the 
revised  statutes  of  New  York  (2  vols.,  1852),  and  he  published  five 
volumes  of  "  Reports  of  Cases  Argued  and  Determined  in  the  Supreme 
Court  and  in  the  Court  for  the  Correction  of  Errors  "  (1845-48). 


IE  PEYSTER,  ABRAHAM  (born  in  New  York  City— then 
New  Amsterdam— July  8,  1657  ;  died  there,  August  2,  1728), 
was  a  son  of  Johannis  de  Peyster,  founder  of  the  family  in  Amer- 
ica. (For  a  sketch  of  the  de  Peyster  family  from  Johannis  down, 
see  the  biography  of  Frederic  de  Peyster.)  He  held  successively  the 
offices  of  alderman  in  1685,  mayor  from  1691  to  1695,  judge  of  the  Su- 
preme Court  and  chief-justice   of  that 

tribunal  in  1700,  member  of  the  king's  /^,/[.^:f  p^  /^f^^ 

council  from  1698  to  1702,  and  presiding         J"^"^  J{^^ 

officer  of  the  council  and  governor  of  the  ^^  

province  in  1701.     He  was  also  colonel 

commanding  the  militia  of  the  City  and  County  of  New  York,  a  troop 
consisting  of  one  comi)any  of  horse  and  eight  comi)anies  of  infantry, 
with  a  total  of  685  men.     For  twenty  years  from  1706  he  was  treasurer 


IIISIOUV    OI-'    TlIK    IJKNCll    AM)    IIAK    OK    NKW    VoKK  'M)] 

of  the  Provincos  of  New  York  and  New  .lorscy.  Tie  was  the  nioat 
iiitiinato  friend  of  Richard  C-oote,  Karl  of  BeUoniont,  New  York's  best 
colonial  governor,  and  he  was  also  a  friend  of  William  Penn,  pro- 
])rie(or  of  Pennsylvania,  wiio  in  one  of  his  letters  alludes  to  the 
fascination  of  his  social  qualities  and  humor. 

He  was  a  man  of  wealth  and  h<;ured  very  prominently  in  the  im- 
l)ortant  events  of  his  times.     Accordini?  to  Martha  .1. 
Jjaml),  the  lirst  impulse   of   real   municipal    progress 
and  improvement  in  New  Y^'ork  City  was  due  to  his 
public  spirit,     lie  personally— or  in  conjunction  with 
Colonel    Nicholas   Bayard — presented  to  the  city  the 
site  of  the  original  city  hall,  at  the  head  of  Broad 
street,  wlunv  stands  the  ])resent    United   States  sub- 
treasury  building,  and  wliere  \Vashington  was  inau- 
gurated.     He  built   the  first  jn-ivate   mansion  house      db  petbter  arms. 
in   Queen's — now   Pearl— street,   opposite   Cedar,   to 
which  the  present  De  Peyster  street  served  as  the  carriage-way  com- 
municating with  the  stables. 


E  PEYSTER,  FREDERIC,  a  man  who  exerted  command  and 
influence  through  innate  although  not  outwardly  perceptible 
winning  and  governing  characteristics,'  was  born  in  New  Y^ork 
City,  November  11,  1790.  He  was  the  third  son  of  Frederic 
de  Peyster  and  Helen  Hake.  His  lineage  on  this  continent  "runs  back 
for  more  than  two  and  a  half  centuries  to  the  dawn  of  Dutch  dominion 
over  Manhattan  ;  his  name  descending  through  six  generations  from 
father  to  son,  each  a  leader  of  men  in  his  day,  and  charged  with  civic 
trusts  when  public  life  meant  honorable  fame."  The  founder  of  the 
family  in  America^  Johannis  de  Peyster,  came  to  New  Amsterdam  in 
1645.  He  and  his  wife,  Cornelia  Lubberts,  were  natives  of  Haarlem, 
Holland,  where  the  de  Peysters,  descendants  of  a  Huguenot  family  of 
Tours,  in  France,  the  original  seat  of  the  Hugenots,  took  refuge  soon 
after  the  massacre  of  St.  Bartholomew,  in  1572.  Between  1(355  and 
1077  he  held  the  offices  of  schepen,  burgomaster,  alderman,  and  deputy 
mayor,  and  was  one  of  the  memorable  "  committee  of  defence,"  in 
1673,  to  protect  New  Amsterdam  against  the  English.  He  declined 
the  appointment  of  mayor  under  the  English  in  1677  because  of  his 
imperfect  acquaintance  with  English,  although  the  first  English  gov- 
ernor declared  "  he  could  make  a  better  platform  speech  than  any 
other  man  outside  of  Parliament."  His  son,  Abraham  de  Peyster, 
(born  in  New  Y'ork,  July  8,  1657),  held  the  offices  of  alderman  of  New 
York  in  1685  ;  mayor  from  1691  to  1695  ;  member  and  presiding  officer 
of  the  king's  council;  acting  governor  in  1701  ;  chief-justice  of  the 
Supreme  Court  in  1700 ;  treasurer  of  the  provinces  of  New  Y'ork  and  New 

'  Professor  Dis-ilpr  of  Columbia  College,  now  Uni-     Peyster,  suggested  the  words,  Fir  Auctoritatig,  which 
versiiy,  being  requested  to  write  an  epitapli  for  Mr.  de     are  inscribed  on  his  tombstone. 


302 


HISTORY  OF  THE  BENCH  AND  BAK  OF  NEW  YORK 


Jersey  from  1706  to  1721,  and  colonel  commanding  the  regiment  of 
New  York  City  militia,  or  train-bands,  horse  and  foot.  He  was  the 
intimate  friend  of  the  earl  of  Bellomont,  governor  of  New  York,  and 
of  William  Penn,  proprietor  of  Pennsylvania,  who  marked  especially 
his  amiable  character.  Abraham  de  Peyster,  second,  eldest  son  of  the 
preceding,  succeeded  his  father  as  treasurer  of  New  Y'ork  and  New 
Jersey  and  held  a  similar  high  social  position  in  the  colony.  His 
marriage  to  the  eldest  daughter  of  Jacobus  \'an  Cortland  introduced 
another  famous  family  into  the  line.   The  direct  line  continues  through 

James  de  Peyster,  eldest  son 
of  Abraham,  second,  who 
married  a  daughter  of  Joseph 
Reade,  member  of  the  king's 
council,  and  whose  third  son 
(the  two  elder  sons  dying 
without  male  issue),  became 
the  head  of  the  house,  and 
was  the  father  of  Frederic  de 
Peyster.  Helen  Hake,  his 
mother,  was  the  only  daugh- 
ter of  Commissary  -  General 
Samuel  Hake  of  the  British 
army,  and  Helen  Livingston, 
eldest  daughter  of  Robert 
Gilbert  Livingston,  and  great 
granddaughter  of  the  first 
lord  of  Livingston  manor. 

Frederic  de  Peyster  was 
born  in  the  town  house  of  his 
parents,  on  Hanover  square, 
at  that  time  one  of  the  most 
fashionable  quarters  of  New 
York.  He  was  educated  with 
a  care  commensurate  with  the 
importance  of  the  historic  family  name,  being  placed  at  an  early  age 
under  the  tutelage  of  Doctor  Chase  (then  principal  of  a  grammar 
school  in  Poughkeepsie,  New  York,  and  afterward  episcopal  bishop  of 
Ohio).  He  was  subsequently  placed  under  the  instruction  of  Mr. 
Findlay,  of  Newark,  New  Jersey  ;  prepared  for  college  under  Doctor 
Eigenbrodt,  at  Union  Hall;  and  entered  in  1812  Columbia  College, 
from  which  he  graduated  in  1816,  with  high  honors,  in  a  class  marked 
for  its  scholarship  and  ability.  He  early  developed  a  talent  for  dis- 
tinctively literary  pursuits,  notably  taking  lead  in  exercises  of  this 
nature  while  in  college  ;  but  after  graduation,  having  chosen  law,  he 
commenced  legal  studies  under  honorable  Peter  Augustus,  eldest  son 
of  the  distinguished  John  Jay.    He  was  also  a  student  under  Peter 


^-^^9^l2V^ 


!.   ![    Ci.LT.rll     ISKI.I,,    l.ai. 

■  t'olouel  Abraham  de  Peyster.) 


IHSTOKY  OK   iiiK  in:.N(ii   AM»  itAii  oK  m;\v   v<»i:k  :{():{ 

Van  ScluuK'k,  one  of  the  leji(liii<;  jiiiisfs  of  that  day.  He  was  admit (»m1 
to  jjiactiee  in  the  Supreme  Court  of  New  York  in  isi'.i,  and  enlrr- 
ina^  actively  ui)on  his  i)i'ofession  devoted  himself  exclusively  to  chan- 
eery  cases.  His  signal  al)ility  and  success  won  immediate  attention, 
insomuch  that  in  the  following  year,  ls:>o,  by  ajjpointmiint  of  (tov- 
ernor  l)e  Witt  Clinton,  he  was  made  a  master  in  chancery.  He  held 
this  odice  by  successive  appointments  until  IS.'JT,  a  period  of  seventeen 
years,  during  which  he  won  an  enviable  reputation  by  his  careful  and 
exhaustive  research  in  determining  cases,  his  decisions  receiving  well- 
nigh  universal  endorsement  by  the  higher  tribunals,  not  one  of  his 
decrees,  it  is  said,  iiaving  been  reversed  on  appeal. 

Retiring  from  professional  and  official  duties,  Mr.  de  Peyster  gave 
his  attention  more  directly  to  the  historical  studies  and  philanthropic 
entei-pi'ises  to  which  his  natural  inclinations  urged  him,  bringing  to 
his  liistorical  investigations  a  perfect  mastery  of  the  subject,  and  to 
his  treatment  a  pleasing  literary  style  and  an  accurate,  logical  and 
scholarly  method.  His  chief  historical  studies  include :  ''  The  Moral 
and  Intellectual  Influence  of  Libraries"  (1866);  "William  the  Third 
as  a  Keformer  "  (1874) ;  "  The  Representative  Men  of  the  English  Revo- 
lution "  ( 1 876) ;  "  The  Life  and  Administration  of  the  Earl  of  Bellomont " 
(1879) ;  "The  Culture  demanded  by  the  Age"  (1869) ;  "Early  Political 
History  of  New  York"  (1865).  He  also  left  in  manuscript  a  work 
(intended  as  a  companion  treatise  to  that  on  Bellomont)  on  Governor 
Fletcher,  which  his  only  child.  General  John  Watts  de  Peyster,  put  in 
print  and  edited  as  far  as  it  was  possible  to  epitomize  and  reduce  to 
reasonable  dimensions  the  enormous  amount  of  valuable  information 
left  in  loose  undigested  notes  by  his  father. 

His  publications  gained  for  him  honorable  distinction  abroad.  In 
1877  he  wals  elected  an  honorary  fellow  of  the  Royal  Historical  Society 
of  Great  Britain,  an  honor  shared  with  Ruskin,  Froude,  Earl  Russell, 
Sir  John  Lubbock,  and  many  others.  He  was  president  of  the  New 
York  Historical  Society  at  the  time  of  his  death.  The  historian, 
George  Bancroft,  at  one  time  secretary  of  the  society,  said  of  Mr.  de 
Peyster:  "No  man  living  has  done  more  than  he,  first  to  restore  life  to 
the  society  when  it  had  fallen  into  a  state  of  languor  and  decay,  and 
then  by  persistent  zeal  to  raise  it  from  the  condition  of  feebleness  to 
established  and  ever  increasing  prosperity." 

Mr.  de  Peyster  was  likewise  honorary  member  of  the  Massachu- 
setts, Maryland,  Pennsylvania,  Wisconsin,  Florida,  Buffalo,  and  Chi- 
cago historical  societies,  and  corresponding  member  of  the  New 
England  Historic-Genealogical  Society. 

Mr.  de  Peyster's  aptitudes  were  many  sided.  Early,  while  yet  a 
student  in  Columbia  College,  he  was  elected  commander  of  an  organi- 
zation among  the  students  for  active  service  in  event  of  an  invasion  of 
New  York  during  the  war  of  1812.  In  co-operation  with  the  defensive 
forces  under  General  Jonas  Mapes,  his  command  "  assisted  in  the  con- 


304  HISTORY    OF   THE   BENCH    AXD    BAR   OF    XEW   YORK 

str^^ctioIl  of  fieldworks  thrown  up  to  defend  McGowan's  Pass,  which 
constituted  a  portion  of  the  line  of  entrenchments  that  extended  from 
the  Harlem  to  the  North  river."  He  also  interested  himself  in  the  state 
militia ;  was  commissioned  captain  in  the  115th  regiment ;  in  1825 
became  an  aide  on  the  staff  of  Brigadier-General  Fleming ;  and  even- 
tually was  appointed  aide  on  the  staff  of  Governor  De  Witt  Clinton,  as 
well  as  military  secretary  to  that  executive  for  the  southern  district  of 
New  York,  an  office  of  great  importance  at  the  time. 

His  interest  in  religious,  educational  and  philanthropic  institu- 
tions marked  another  conspicuous  side  of  his  character.  He  was  vice- 
president,  and  one  of  the  original  incorporators,  of  the  New  York 
Society  for  the  Prevention  of  Cruelty  to  Children  ;  a  member  for  more 
than  forty  years,  and  on  the  board  of  managers,  of  the  New  York 
Bible  Society  ;  a  member  of  the  board  of  the  New  York  Institution 
for  the  Deaf  and  Dumb  ;  a  manager  and  chairman  of  the  finance  and 
building  committee  of  the  Home  for  Incurables  ;  clerk  of  the  board  of 
trustees  of  the  Leake  and  Watts  Orphan  House  for  fifty  years  ;  and  a 
member  of  many  other  organizations. 

He  died  August  17, 1882,  aged  nearly  eighty-six  years.  The  tributes 
of  the  press  were  numerous  and  unusually  significant.  Said  one  :  "  He 
has  probably  been  connected  as  an  active  officer  with  more  social, 
literary  and  benevolent  societies  than  any  other  New  Yorker  who  ever 
lived."  Another  characterized  him  as  one  "  who,  without  ever  having 
held  any  city  office,  has  been  for  half  a  century  one  of  the  most  valued 
and  one  of  the  best  known  public  men  in  this  city."  Still  another 
wrote :  "  The  better  part  of  his  eighty-six  years  of  life  were  made 
memorable  by  good  service  to  the  community  in  which  his  ancestors 
had  dwelt  for  more  than  two  hundred  years." 


E   SILLE,  NICASIUS.      See  SILLE,  NICASIUS  DE. 


ICKERSON,  EDWARD  N.  (born  in  Paterson,  New  Jersey, 
February  11,  1824 ;  died  in  Far  Rockaway,  Long  Island, 
December  12, 1889),  was  a  son  of  Philemon  Dickerson,  an  emi- 
nent New  Jersey  lawyer,  judge,  and  statesman.'    His  mother 

'  Philemon  Dickerson  was  gradnated  at  Princeton,  son.    Tlie  founder  of  the  Dickerson  family  in  America, 

engaged  in  the  practice  of  hiw  at  Paterson,  was  elected  Philemon,  emigrated  from  England  early  in  the  seven- 

to  congress  in  IHJJS,  became  governor  and  chancellor  in  teenth  century,  and  was  one  of  the  flrst  puritan  settlers 

1836,  was  again  elected  to  congress,  and  ui)on  his  retire-  of  Massachusetts,  being  a  freeholder  in  Salem  in  1638. 

ment  from  that  body  was  appointed  United  States  judge  Peter,  one  of  his  descendants,  was  the  owner  of  the 

of  the  District  Court  of  New  Jersey,  tilling  that  office  Dickerson  iron  mines  ni  New  Jersey  in  1741,  speaker  of 

with  distinction  until  his  death.     His  brother,  Mahlon,  the  assembly,  and  a  patriot  in  the  Revolution.    Peter's 

became  a  prominent  lawyer  of  Philadelphia  and  quar-  son,  Jonathan  (grandfather  of  Edward  N.),  was  a  man 

termaster-general  of   Pennsylvania,  and  returning  to  of  remarkable  mechanical  and  scientific  ability,  and  was 

New  Jersey  was  elected  governor  and  served  as  United  the  grantee   of    the  eleventh  patent  recorded  in  the 

States  senator  for  sixteen  years,  afterward  holding  the  United  States  patent  office.    He  served  in  congress  and 

portfolio  of  secretary  of  the  navy  under  President  Jack-  exercised  great  influence  in  New  Jersey. 


IIISIOIIV    OK     llll';    HK.NCll    AM>    liAK    <»!•     NKW     ^((IIK  MO."* 

was  a  (laugh fcr  of  (yaplaiii^  .lolin  Stolesbiiry,  an  ofllccr  in  llu!  Rovoln- 
lion,  who  pMilicipatel  in  many  important  battles.  He  was  cduciitcd  at 
Princeton  College,  where  lie  began,  un(hM- the  distingnislied  Professor 
J()S(>ph  Henry,  tlie  seientilie  studies  wliicli  afterwai'd  alfonh'd  liim  his 
unequalled  ecpiipment  as  a  patent  lawyer.  At  the  age  of  twenty-one 
li(>  was  admitted  to  the  bar,  and  he  soon  attracted  attention.  His  iirst 
iiupoitant  case  was  IIow  vs.  Law,  an  action  brought  under  the  Califor- 
nia mail  contract,  and  soon  after  lie  won  a  victory  over  Kiifus  Choate 
in  the  Colt  patent  suit.  In  other  cases,  notably  that  of  Sickles  vs. 
.Burden,  he  added  greatly  to  his  I'ising  reputation.  Notwithstanding 
the  brilliant  promise  of  his  career  at  the  bar,  he  decided  to  abandon 
his  profession  for  a  while  and  devote  himself  to  travel  and  scientific 
researches.  He  visited  many  of  the  countries  of  Europe  and  Central 
and  South  America,  thoroughly  familiarizing  himself  with  the  most 
recent  inventions  and  improvements.  In  1873  he  resumed  his  legal 
practice,  and  until  his  death  he  applied  himself  with  untiring  zeal  and 
the  most  signal  success  to  its  duties,  being  recognized  by  his  brethren 
of  the  bar  as  the  foi'emost  patent  lawyer  of  the  United  States.  Among 
the  great  suits  with  which  he  was  identified  as  counsel  were  those  of 
the  American  Bell  Telephone  Company  and  the  National  Improvement 
Telegraph  Company,  the  Bell  against  the  People's  Company,  the  Pan- 
Electric  cases,  and  numerous  others  involving  the  best-known  patents 
for  the  tele^jhone,  the  telegraph,  reaping-machines,  explosives,  railways, 
refrigerators,  ventilating  processes,  nickel-plating,  planingmachines, 
and  guns.  In  the  Bell-People's  suits  the  records  fill  fourteen  volumes. 
Among  his  cdients  were  the  ^Vestern  Union  Telegraph  Company,  the 
Gold  and  Stock  Telegraph  Company,  the  Standard  Oil  Company,  the 
IMcCormick  Mower  and  Reaper  Company,  the  Bell  Telephone  Com- 
pany, and  the  Edison  Electric  Company. 

To  his  extraordinary  scientific  attainments  as  a  patent  lawyer 
Mr.  Dickerson  added  the  qualities  of  unwearying  industry  and  great 
tenaciousness  and  aggressiveness.  He  was  never  idle.  When  not 
engaged  in  research  upon  a  case,  he  employed  his  time  in  study,  ever 
adding  to  the  range  and  quality  of  his  knowledge.  On  the  subjects  of 
sanitary  plumbing,  lighting,  ventilation,  and  heating  he  was  an  expert. 
He  was  passionately  devoted  to  astronomical  science,  and  on  the  roof 
of  his  residence  in  Thirty-fourth  street  near  Fifth  avenue  he  built  an 
observatory  equipped  with  the  most  approved  and  recent  instruments 
and  inventions. 

At  a  meeting  of  the  New  York  bar,  held  to  take  action  upon  his 
death,  a  resolution  was  adopted  in  w^hich  the  following  tribute  was  paid 
to  his  professional  qualities  : 

In  the  special  field  in  which  he  became  distinguished  he  was  noted  for  his  mas- 
tery of  the  principles  of  law  that  regulate  the  rights  of  those  whose  laboi-s  have  done 
so  much  to  adv^ance  the  material  prosperity  of  our  country;  for  his  accurate,  prac- 
tical acquaintance  with  every  branch  of  science  and  of  mechanics  involved  in  the 


306  HISTORY   OF  THE   BENCH   AND   BAR  OF   NEW  YORK 

useful  arts;  as  also  for  his  capacity  to  promote,  protect,  and  defend  the  interests  of 
inventors.  He  was  thus  able  to  instruct  and  edify  every  tribunal  before  which  he 
appeared,  and  he  deserved  and  received  the  full  attention  and  respect  of  those  whose 
duty  it  was  to  decide  the  controversies  in  whicli  he  took  part.  Earnest  in  Ms  con- 
victions, with  a  great  faculty  of  lucid  statement,  and  persuasive  of  speech,  he  en- 
forced his  views  with  an  eloquence  and  power  that  won  him  many  victories.  By 
these  qualities  he  fulfilled,  with  singular  completeness,  the  proper  function  of  an 
advocate.  Concerned  in  many  of  the  most  important  patent  litigations  of  his  day, 
Mr.  Dickerson  has  left  his  mark  upon  that  branch  of  our  jurisprudence.  He  has 
left  it  also  upon  the  mechanic  arts,  in  some  of  which  he  had  made  highly  useful 
inventions  of  his  own.  He  has  left  it,  too,  upon  many  of  the  sciences  which  are 
concerned  with  the  material  progress  of  the  age.  His  proficiency  in  scientific 
knowledge  made  him  always  a  welcome  guest  among  its  special  professors;  for 
while  not  himself  a  specialist,  his  studies  and  acquirements  embraced  the  whole 
field  of  applied  science,  and  thus  he  was  enabled  to  impart  to  others  more  than  he 
received  from  them.  

]ICKINSON,  DANIEL  STEVENS  (born  in  Goshen,  Connecti- 
cut, September  11,  1800  ;  died  in  New  York  City,  April  12, 
1866),  was  educated  in  the  public  schools  of  Guilford,  Che- 
nango county.  New  York.  Possessing  great  natural  aptitude, 
he  perfected  his  elementary  training  by  private  studies.  He  applied 
himself  for  a  while  to  teaching  and  surveying,  and  then  prepared  him- 
self for  the  bar,  being  admitted  in  1828.  Three  years  later  he  removed 
to  Binghamton,  where  he  became  prominent  in  his  profession  and  in 
politics.  His  public  career  began  in  1836,  when  he  was  elected  as  a 
democrat  to  the  state  senate.  In  that  body  he  promptly  made  him- 
self one  of  the  leaders  of  his  party,  being  especially  conspicuous  as  a 
debater.  He  was  the  unsuccessful  democratic  candidate  for  lieutenant- 
governor  in  1840,  but  in  1842  he  was  elected  to  that  office.  When  his 
term  expired  in  1844  he  was  appointed  United  States  senator  by  Gov- 
ernor Bouck  to  fill  a  vacancy,  and  subsequently  he  was  chosen  for  a 
full  term  by  the  legislature.  He  pursued  a  conservative  course  in  the 
senate  on  the  great  questions  agitating  the  public  mind — the  annexa- 
tion of  Texas,  the  joint  occupation  of  Oregon,  the  Wilmot  proviso  and 
the  compromise  measures  of  1850.  He  was  the  author,  in  1847,  of  two 
resolutions  concerning  the  government  of  the  territories,  which  em- 
braced the  substance  of  the  "  popular  sovereignty  "  doctrine  of  later 
years.  In  the  democratic  national  convention  of  1852  he  was  sup- 
ported by  the  vote  of  Virginia  for  the  presidential  nomination.  His 
attitude  on  the  important  measures  of  the  session  of  1850  was  highly 
praised  by  Daniel  Webster,  who,  in  a  letter  dated  September  27,  1850, 
characterized  it  as  "  noble,  able,  manly  and  patriotic."  After  leaving 
the  senate  he  was  nominated  by  President  Pierce,  and  confirmed,  as 
collector  of  the  port  of  New  York  (1852),  but  he  declined  the  office. 

During  the  war  ex-Senator  Dickinson  was  one  of  the  most  earnest 
and  influential  supporters  of  the  federal  government  in  the  Stat(»  of 
New  York.     In  1861  he  was  elected  attorney-general  by  a  majority  in 


nisTOKY  OK   iiii:  in:Ncii  and  hau  of  m;\v  voi;k  :{()7 

j'xcosa  of  100,(100.  After\v;ir<l  lie  (Iccliiicd  the  oflicc  of  coiimiissioiicr 
to  settle  the  northwestern  hoiindary  controversy,  to  which  he  had  l)e«'n 
ii()iiunat(Ml  by  President  Lincoln  ;  and  lie  also  declin(!d  an  appoint- 
ment by  Governor  Fenton  as  a  judge  of  the  Court  of  Ap])eals.  He 
accepted,  liowever,  the  jwsition  of  Unit<'d  States  district-attorney  for 
the  southern  district  of  New  York,  and  continued  to  discharge  its 
duties  until  his  death.  He  received  150  votes  for  the  vice-presidential 
nomination  in  the  rei)ublican  national  (convention  of  1804.  His  "Life 
and  Works,"  in  two  volumes,  were  published  by  his  brothei-  in  18(>7, 


TOSSY,  GEORGE  S.  (born  in  1835  ;  died  in  Brooklyn,  April 
27,  1882),  was  one  of  the  earliest  and  best  law-book  pub- 
lishers in  the  state,  issuing  many  works  of  importance.     His 
father,  John  J.  Diossy,  was  also  a  leading  law-book  pub- 
lisher, well-known  to  the  profession. 


TX,  JOHN  ADAMS  (born  in  Boscawen,  New  Hampshire,  July 
24,  1798 ;  died  in  New  Y^ork  City,  April  21,  1879),  was  a  son 
of  Major  Timothy  Dix,  of  the  United  States  infantry.  He 
was  educated  at  Salisbury,  Phillips  Exeter  Academy,  the 
College  of  Montreal,  and  Saint  Mary's  College,  Baltimore.  He  passed 
his  youth  and  early  manhood  in  the  military  service.  Although  but  a 
boy,  he  was  in  active  duty  throughout  the  wai'  of  1812.  He  was  ap- 
pointed a  cadet  in  1812,  an  ensign  in  1813,  and  in  1814  became  a  2d- 
lieutenant  and  adjutant  to  Colonel  John  De  B.  Walbeck.  After  the 
war  he  continued  in  the  army,  becoming  aide-de-camp  in  1819  to  Gen- 
eral John  A.  Brown,  then  in  command  of  the  northern  military  depart- 
ment. In  1826  the  government  dispatched  him  as  a  special  messenger 
to  the  court  of  Denmark.  He  was  stationed  in  Fortress  Monroe  after 
his  return,  with  the  rank  of  captain,  but  in  consequence  of  feeble 
health  he  soon  afterward,  in  1828,  resigned  from  the  army. 

Whilst  serving  as  aide-de-camp  to  General  Brown  at  Brownsville 
he  had  studied  law,  and  continuing  his  legal  studies  later  under  the 
direction  of  William  West,  he  was  admitted  to  the  bar.  Upon  his 
retirement  from  the  military  service  he  engaged  in  the  practice  of  the 
legal  profession  at  Cooperstown,  New  Y^ork,  whence  he  removed  to 
Albany  to  assume  the  duties  of  adjutant-general  of  the  state,  to  which 
office  he  had  been  appointed  by  Governor  Throop.  Thenceforward, 
for  many  years,  he  took  an  active  interest  in  politics  and  became  one 
of  the  leading  men  in  the  councils  of  the  democratic  party  and  a  con- 
spicuous member  of  the  famous  "  Albany  regency.''  He  was  appointed 
secretary  of  state  and  superintendent  of  common  schools  in  1833,  and 
while  holding  these  offices  he  manifested  a  highly  intelligent  devotion 
to  the  educational  interests  of  the  state,  publishing  valuable  reports 


308  HISTORY   OF   THE   BENCH   AND   BAR   OF   NEW   YORK 

on  the  schools,  and  also  (1836)  a  speciall  j^  noteworthy  report  on  the  New 
York  geological  survey.  After  leaving  office,  in  1840,  he  edited  for  a 
while  the  Northern  Light,  a  literary  and  scientific  journal.  He 
served  a  term  in  the  assembly  (1842),  and  then  spent  two  years  in 
foreign  travel.  Upon  his  return  he  was  chosen  a  member  of  the  United 
States  senate,  and  he  served  in  that  body  from  1845  to  1849.  As  a 
senator  he  very  reluctantly  yielded  to  free-soil  influences,  which  in  the 
circumstances  he  could  not  resist.  In  1848  he  was  nominated  for  gov- 
ernor of  New  York  on  the  ticket  of  the  free-soil  democracy,  but  was 
defeated  by  Hamilton  Fish.  Under  the  Pierce  administration  he  was 
appointed  assistant-treasurer  at  New  York. 

During  the  critical  ten  years  that  preceded  the  civil  war  Mr.  Dix 
remained  a  democrat  of  democrats.  Even  in  the  presidential  campaign 
of  I860,  unlike  his  old  colleague  in  the  United  States  senate,  Daniel  S. 
Dickinson,  he  recognized  no  leasons  for  breaking  from  the  democratic 
party.  He  not  only  vigorously  opposed  the  candidacy  of  Abraham 
Lincoln,  but  supported  the  ticket  of  the  extreme  element  of  his  party, 
Breckinridge  and  Lane.  At  that  time  he  was  postmaster  of  New 
York,  having  been  appointed  to  the  place  by  President  Buchanan  in 
May,  1860.  When  the  vacancy  in  the  treasury  department  occurred 
in  the  exciting  closing  months  of  Buchanan's  term,  he  was  selected  by 
the  president,  upon  the  strong  recommendation  of  the  New  York 
bankers  and  financiers,  to  assume  that  important  portfolio,  and  began 
his  duties  as  secretary  of  the  treasury  January  10,  1861.  He  immedi- 
ately manifested  uncompromising  devotion  to  the  interests  of  the  fed- 
eral government  as  against  the  secessionists.  He  sent  a  special  agent 
to  New  Orleans,  Mobile,  and  Galveston  to  save,  if  possible,  the  revenue 
cutters  stationed  at  those  ports.  Being  advised  that  the  commander 
of  the  McClelland  at  New  Orleans  had  refused  to  obey  his  orders,  he 
telegraphed,  on  January  29,  upon  his  own  responsibility  and  with- 
out consulting  the  president,  the  following  historic  dispatch  : 

Treasury  Department,  Jan.  29,  1861. 
Tell  Lieut.  Caldwell  to  arrest  Capt.  Breshwood,  assume  command  of  the  cutter, 
and  obey  the  order  I  gave  through  you.  If  Capt.  Breshwood  after  arrest  under- 
takes to  interfere  with  the  command  of  the  cutter,  tell  Lieut.  Caldwell  to  consider 
him  as  a  mutineer  &  to  treat  him  accordingly.  If  any  one  attempts  to  haul  down 
the  American  flag,  shoot  him  on  the  spot. 

John  A.  Dix, 
Secretary  of  the  Treasury.' 

He  was  the  first  president  of  the  Union  Defense  Committee,  organ- 
ized to  sustain  President  Lincoln's  government,  presided  at  the  Union 
square  mass-meeting  of  Ai)ril  24,  1861,  and  organized  and  sent  to  the 
field  seventeen  regiments  in  response  to  the  president's  call  for  troops. 
Appointed  a  major-general  of  New  York  volunteers,  he  was  first  placed 

'  For  an  interesting  history  of  this  celebrated  dispiitcli,  see  "Moiuorial   History  of  New  Yorli,"  Vol.  iii.,  page 


IIISIOIIY    OI-     llli;    HKNCII     AND    ItAIt    OK    NKW    VoKK  :{<»!) 

ill  coiiiniiMKl  of  lilt*  Ailiii^toii  mid  Alrxmidiia  (Icparf incuts,  iind  then 
\v:is  ;issi<;-n«'d  to  tlic  foiiiiiiaiid  of  (lie  dcpartiiiciil of  Maryland,  wln-if 
he  rt'iulercd  ^icat  services.  He  was  transferred  in  May,  1>><'>2,  fo  ]''ort 
Monroe,  and  in  the  snmmer  of  1S(!;{  to  the  coniniand  of  tlie  (h'partrnent 
of  the  east  at  New  York,  in  whicii  i>()sition  lie  rnuaincd  to  tlic  end  of 
the  war. 

After  the  war  (leneral  Dix  was,  snccessively,  naval oHicer  of  the  port 
of  New  York,  minister  to  France,  and  "governor  of  New  York  (elected 
in  1872  by  a  large  majority,  but  defeated  by  Mr.  Tilden  n])on  his  can- 
ilidacy  for  re-election  in  1ST4). 

General  Dix  was  eminent  as  a  lawyer  and  also  in  linancial  and 
corporate  enterprises.  lie  became  president  of  the  Mississi])i)i  &  Mis- 
souri Railway  Company,  was  the  lirst  president  of  the  L'nion  Pacific 
Railroad  Company  (serving  from  18G3  to  1S6S),  and  was  for  a  brief  time 
j)resident  tlie  Erie  Railway  Company  (1872).  He  was  an  accomplished 
scholar,  lingnist,  orator,  and  writer,  publishing  a  "  Sketch  of  the  Re- 
sources of  the  City  of  New  York  "  (1827),  "  Decisions  of  the  Superin- 
tendents of  Common  Schools"  (1837),  "A  Winter  in  Madeira  and  a 
Snmmer  in  Spain  and  Florence"  (1850;  5th.  ed.,  1853),  "Speeches  and 
Occasional  Addresses"  (2  vols.,  1864),  "  Dies  /rflg"  (a  translation,  1863; 
republished  in  1875),  and  ^'  Stabat  Mater  ^^  (translation,  1S68). 

He  was  prominent  in  the  episcopalian  denomination,  taking  an 
especial  interest  in  Trinity  church  (of  which  his  son.  Reverend  Doctor 
Morgan  Dix,  has  for  many  years  been  pastor).  He  was  one  of  the  most 
conspicuous  and  honored  citizens  of  New  York.  On  the  occasion  of 
the  investigation  by  the  Bar  Association  of  the  charges  against  Charles 
O'Conor  (1876)  he  was  chairman  of  the  inquiry  tribunal. 


ORSHEIMER,  WILLIAM  (born  in  Lyons,  New  York,  Feb- 
ruary 5,  1832  ;  died  in  Savannah,  Georgia,  March  20,  1888), 
was  a  son  of  Philip  Dorsheimer,  a  wealthy  resident  of  Buf- 
falo, who  took  an  active  part  in  the  organization  of  the 
republican  part^^  He  attended  Harvard  College,  and  although  pre- 
vented by  ill-health  from  graduating  received  later  from  that  institu- 
tion the  degree  of  M.A.  Admitted  to  the  bar  in  1854,  he  practiced  his 
profession  in  Buffalo  with  ability  and  considerable  success,  meantime 
manifesting  a  decided  interest  in  politics,  first  as  a  democrat  and  then 
as  a  republican.  He  served  for  a  brief  period  in  the  war  as  a  major 
on  the  staff  of  General  Fremont  in  Missouri,  and  afterward  wTote  an 
account  of  "General  Fremont's  Hundred  Days  in  Mis.souri."  He  was 
appointed  United  States  district-attorney  for  the  northern  district 
of  New  York  by  President  Johnson  in  1867,  serving  until  1871.  Hav- 
ing resumed  affiliation  with  the  democratic  party,  he  was  nominated 
and  elected  lieutenant  governor  of  the  state  on  the  ticket  with  Samuel 
J.  Tilden  in  1874.    He  was  twice  reelected,  serving  until  1880.    He  was 


310  HISTORY    OF   THE   BENCH    AND    BAR   OF   NEW    YORK 

a  commissioner  of  the  state  survey  (1875)  and  a  commissioner  of  the 
state  reservation  at  Niagara  (1883).  He  co-operated  heartily  and  ably 
with  Governor  Tilden  in  his  war  on  the  "  Canal  Ring."  In  the  presi- 
dential campaign  of  1872  he  supported  Horace  Greeley.  At  the 
national  democratic  convention  of  1876  he  was  very  instrumental  in 
bringing  about  the  nomination  of  Mr.  Tilden,  and  he  reported  the 
platform  as  a  member  of  the  committee  on  resolutions. 

Removing  to  New  York  City,  he  was  elected  to  congress  in  1882. 
An  early  friend  of  Grover  Cleveland,  he  published  a  campaign  bio- 
graphy of  that  democratic  leader  in  1884.  In  1885  he  was  appointed 
by  President  Cleveland  United  States  district-attorney  for  the  southern 
district  of  New  York,  but  he  resigned  the  oflBce  after  a  year's  service, 
having  assumed  the  editorship  of  the  New  York  Daily  Star.  In  this 
newspaper  enterprise  he  failed  to  succeed  according  to  his  expecta- 
tions. 

Mr.  Dorsheimer  was  a  man  of  varied  attainments,  and  was  long  a 
familiar  figure  in  New  York  public  life.  As  a  lawyer  his  abilities 
were  well  recognized,  but  his  numerous  activities  in  other  fields  pre- 
vented him  from  gaining  the  distinction  at  the  bar  for  which  his 
natural  capacities  qualified  him. 


|OTY,  LOCKWOOD  L.  (born  in  Groveland,  New  York,  May 
15,  1827  ;  died  in  Jersey  City,  New  Jersey,  January  18, 187i>y, 
began  the  practice  of  the  law  in  Geneseo,  New  York,  and 
"^^  was  prominent  at  the  bar.  During  the  war  he  was  very 
energetic  in  obtaining  volunteers  for  the  army,  served  as  military  sec- 
retary to  Governor  Fenton  and  was  the  founder  of  the  state  military 
bureau  at  Albany.  From  1871  until  shortly  before  his  death  he  was 
pension  agent  in  New  York  City. 


RESSER,  HORACE  (died  January  27,  1877),  was  graduated 
at  Union  College  in  1828,  and,  being  admitted  to  the  bar, 
took  an  active  interest  in  the  cause  of  the  negro,  being  con- 
spicuous as  one  of  the  earliest  advocates  of  escaped  slaves 
in  the  courts  of  New  York.  He  was  a  historical  and  legal  writer. 
Among  his  published  works  are  "The  Battle  Record  of  the  Amer- 
ican Revolution  "  (New  York,  1863),  and  "  Internal  Revenue  Laws  as 
Amended  to  July,  1866"  (New  York,  1866). 


UANE,  JAMES  (born  in  New  York  City,  February  6,  1733 ; 

died  in  Duanesburg,  New  York,  February  1,  1797),  was  the 

son  of  a  citizen  of  New  York,  who,  after  a  period  of  service 

in  the  British   navy,  resigned  and  engaged  in  mercantile 

pursuits.     On  the  side  of  his  mother,  Altea  Ketaltas,  he  was  con- 


IIISTOUY    OK   TlIK    HKNCII     AM»    MAK    OK    N  K\V     VoUK  Mil 

iicclcd  with  sonic  of  (lit>  old  :iii(l  pi-oiiiiiiciit  I'liTiiilifs  of  N'<'\v  Yoik  of 
Diitcii  oriiiiii.  He  hfcanu'  rchiN-d  to  tiic  i)ou«'rfid  Liviii^slon  fiiiiiily 
by  \u>,  niiiniage  with  Mary,  dau^littT  of  Coloiud  Rolu'it  Liviiif^.stoii, 
tlic  i)r()pri('tor  of  the  nianor.  James  Duane  was  (Mliicated  for  tlie  le^al 
])rofessioii,  studying  in  the  ollice  of  the  distinguished  .lames  Al(^xan(ler. 
''  lie  rose  to  very  great  eminence  in  his  i)r()fession  and  was  in  tlie  enjoy- 
ment of  a  liigldy  i)rolital)h>  practice.  Among  his  clients  was  tlie  'i'lin- 
ity  church  corporation  in  the  Anneke  Jans  suits,     lie  had  very  large 

James  Duane,  Efquire, 

Nsw-YonK^/'-  MAYOR, 

And  the  A  L  D  E  R  M  E  N  of  the  City  of  N  E  W- Y  O  R  K. 

To  all  to  -mhom  the  ft  Prtfents  Jhall  come,  fend  Greeting  : 


K 


N  O  W    Y  E.    That  ^^a^^^e^&^fe^^  .^L  .^...;^x;^ 


is  admitted,  received  and  allowed  a  F  R  E  E  M  A  N  and  C  I  T  I  Z  E  N  of  the  faid  City ; 
to  Have,  Hold,  Ufc  and  Enjoy  all  the  Benefits,  Privileges,  Franchires  and  Immunities  whatfocvcr, 
granted  or  belonging  to  the  6id  City.  In  Testimon  i  whereof,  the  laid  Mayor  and  Aldermen 
have  caufed  the  Seal  of  the  faid  City  to  be  hereunto  affixed.       WITNESS  JAMES  DUANE, 

Efquire,  Mayor,  the  iw^-Ji^^^^^^    Day  of  *..^<iy     in  the  Year  of  our  Lord 

/^cf^^  and  of  the  Sovereignty  and  Ind^endenceof  the  State  the  e^^'X^A-  s 


<^i.^ 


FREEMAN  S   fEUTlFKATE   ISSIED  BY   MAT 


landed  interests  in  the  state.  By  purchase  and  inheritance  he  became 
the  owner  of  the  township  of  Duanesburg,  Schenectady  county.  About 
64,000  acres  bought  by  him  in  that  part  of  the  province  which  subse- 
quently became  Vermont  were  lost  to  him  bj-  reason  of  subsequent 
territorial  complications  and  disputes  as  to  possession.  He  took  a 
leading  part  in  urging  the  title  of  New  York  to  the  New  Hampshire 
grants,  being  the  author  of  the  memorial  to  the  assembly  in  1773  in 
support  of  that  claim  ;  and  he  was  instrumental  in  causing  the  New 
York  legislature  to  declare  Ethan  Allen  and  his  Vermont  associates 
traitors  and  outlaws. 


312 


HISTORY    OF   THE   BENCH    AND   BAK   OF   NEAV   YORK 


In  1774  he  was  chosen  a  delegate  from  New  York  to  the  first  conti- 
nental congress.  In  that  body  he  took  a  quite  conservative  position,  op- 
posing the  resolution  to  give  support  to  Massachusetts  in  her  resistance 
to  the  acts  of  parliament,  and  siding  with  Jay  in  sympathy  for  the 
English  style  of  government  and  the  English  church 
as  against  republican  principles.  With  Jay,  indeed, 
he  was  at  the  head  of  the  "party  of  conciliation"  H'HJJa.coo'^Ji^i 
in  New  York.  He  was  a  member  of  all  the  subse- 
quent continental  congresses.  In  1776,  before  the  adoption  of  the 
declaration  of  independence,  he  was  prominent  in  advocating  meas- 
ures of  negotiation  with  Great  Britain.  He  was  a  member  of  the  New 
York  provincial  congress  in  1776-77,  which  formu- 
lated and  adopted  the  first  constitution  of  the  state. 
During  the  war  he  adhered  heartily  to  the  patriotic 
party,  but  was  not  connected  with  the  military  ser- 
vice. After  the  departure  of  the  British  from  New 
York  City  in  1783,  he  returned  there  and  was  chosen 
the  first  mayor  of  the  city  under  the  state  charter. 
He  occupied  the  ofl^ce  from  1784  to  1789,  when  he 
resigned  to  accept  the  position  of  district  judge  for 
New  York,  to  which  he  had  been  appointed  by  Presi- 
dent Washington.  Meantime  he  was  a  member  of  the 
state  senate  (1782-85  and  1789-90),  of  the  state  council,  and  of  \\\^ 
national  constitutional  convention.  He  retired  from  the  bench  of  the 
District  Court  in  1794,  owing  to  failing  health. 


ANNEKE  JANS'   FARM. 


|UDLEY,  JOSEPH,'  the  first  chief-justice  of  the  Colony  of 
New  York  (born  in  Roxbury,  Massachusetts,  September  23, 
1647  ;  died  there,  April  2,  1720),  was  the  son  of  Governor 
Thomas  Dudley,  of  Massachusetts.  He  was  graduated  from 
Harvard  in  1665,  and,  having  been  designed  by  his  parents  for  the 
ministry,  studied  divinity,  but  the  limited  sphere  and  unostentatious 
life  of  a  New  England  clergyman  presented  no  attraction  to  a  man  of 
his  worldly  ambitions.  He  accordingly  gave  up  divinity,  entered  into 
political  life,  and  shortly  afterward  was  elected  a  delegate  from  Rox- 
bury to  the  general  court,  and  also  a  magistrate.  He 
was  one  of  the  commissioners  for  the  united  colonies 
of  New  England  from  1677  to  1681,  and  was  a  com- 
missioner to  negotiate  a  treaty  with  the  Narragansett 
Indians.  In  1682  he  was  the  agent  of  the  Colony  of  Massachusetts 
in  England,  and  upon  the  union  of  Massachusetts  and  New  Hamp- 
shire, in  1685,  returned  to  Boston  and  was  made,  under  Andros,  presi- 
dent of  the  governor's  council,  at  which  period  he  was  enumerated  by 


He  ^.-o 


'  This  biography  is  taljen  largely  from  Honorable  Charles  P.  Daly's  "Historical  Sketch  of  the  Judicial  Tribu- 
lie  of  New  York,  from  1IW3  to  1810  "  (Now  York,  1855). 


iiir:  iii:\(ii   am 


•  l'    NKU    \(>\:k 


:{|:{ 


Doniian  as  ainoiii,'  a  very  It'w  wlio  ini.ulil  Ih'  itlii'd  on  as  loyal  and 
well  allVctcd  to  (he  kin,ii-.  In  KiST  he  was  made  chicrjiisticc  of  a  siipr- 
lior  court  at  Hostoti.  'I'hron^liout  tlic  administration  of  Andros  he 
sujiported  all  the  measni-es  of  that  unpopular  ;:^()vern()r,  and  as  he  pir- 
sidcd  as  jud<;e  ujion  political  trials,  he  was  especially  serviceable  in 
enforcin"::  th(>  despotic  colonial  policy  of  James.  When  the  ])e()ple  of 
Boston  rosc^  apiinst  the  government  of  Andros,  upon  receiving  intelli- 
gence of  the  I'evolution  in  England  1^1688),  Dudley,  with  other  obnox- 
ious persons,  was  thi'own  into  prison,  and 
later  he  was  sent  to  England  with  Andros  to 
answer  to  the  new  king.  There  he  suc- 
ceeded in  ingratiating  himself  with  the 
ministry,  by  which  he  was  first  offered  the  post  of  governor  of  Mary- 
land and  Virginia  and  then  that  of  member  of  the  council  of  New 
York,  with  the  promise  of  a  judicial  station  when  the  government  of 
Slaughter  should  be  fully  established. 

Upon  his  arrival  in  New  York  at  the  close  of  1690  he  at  once 
joined  the  anti-Leislerian  party,  and  when  Governor  Slaughter  as- 
sumed charge  of  affairs  in  1691  he  appointed  him  at  the  head  of  the 
special  commission  of  oyer  and  terminer  for  the  trial  of  Leisler,  as  chief 
or  principal  judge.'  He  pronounced  the  death  sentence  upon  the 
accused,  who  had  refused  to  plead,  and  one  month  later  (April  15, 1691) 
was  elevated  to  the  office  of  chief -justice  of  the  Suin-eme  Court  of  the 
province.  But  the  Leisler  party  having  obtained  the  mastery  in  1692, 
lie  left  the  province  and  shortly  afterward  was  removed  by  Governor 
Fletcher  from  the  chief-justiceship, 
Chief-Justice  Smith  being  appointed 
in  his  place. 

This  second  reverse  of  fortune, 
however,  was  of  but  temporary  dura- 
tion. He  again  went  to  England,  in 
1693,  and  in  a  very  short  time  became 
a  member  of  parliament  for  Newtown, 
Southampton  county,  where,  some 
years  afterward,  he  made  strenuous 
but  unsuccessful  opposition  to  the  re- 
versal of  Leisler's  attainder.  He  sat 
in  parliament  for  eight  years,  during 

which  time  lie  Avas  appointed  lieutenant-governor  of    the  Isle  of 
Wight. 

He  had  now  reached  a  position  that  might  have  satisfied  a  man  of 
ordinary  ambition ;  but,  to  quote  the  language  of  a  New  England 
writer,  he  preferred  to  be  the  first  man  in  New  England  to  any  subor- 
dinate position  in  the  mother  country  ;  and  accordingly,  in  1702,  he 


111-':'  -ii.i^ijNV*''?^®^ 


received  a  commission  from  Queen  Anne  appointing 

'  See  pp.  81-82  of  this  volume. 


him  governor  of 


314  HISTORY   OF   THE   BENCH   AND   BAK   OF   NEW   YORK 

Massachusetts.     He  was  governor  of  that  colony  for  thirteen  years 
until  his  death. 

Joseph  Dudley  was  a  man  of  great  intellectual  accomplishments. 
He  had  the  advantage  of  an  excellent  education  at  the  outset  of  life, 
had  studied  divinity  and  law,  and  in  an  age  distinguished  for  metaphy- 
sical inquiries,  was  attracted  to  and  devoted  much  of  his  time  to  the 
cultivation  of  philosophy.  His  love  of  study,  however,  and  the  exten- 
sive knowledge  he  had  acquired,  had  little  effect  on  his  character,  for 
he  was  essentially  a  worldly-minded  man,  with  whom  the  possession  of 
power  and  of  exalted  station  was  the  chief  end  and  object  of  life. 
Struggling  throughout  the  principal  part  of  his  career  for  power  and 
place,  he  was  not  over-scrupulous  as  to  the  means  he  employed.  The 
thirteen  years  that  he  was  governor  of  Massachusetts  was  the  most 
useful  and  blameless  period  of  his  life,  but  his  antecedents  had  been 
such  that  his  government  was  bitterly  assailed  by  his  enemies  ;  un- 
founded charges  of  corruption  were  made  against  him  and  he  was  fre- 
quently referred  to  as  mainly  resj^onsible  for  the  guilt  of  Leisler's 
blood  and  held  up  to  public  execration  as  a  common  murderer.  As  a 
public  man  he  was  exacting  and  ceremonious,  diligent  in  the  discharge  of 
the  duties  of  his  station,  and  disposed  to  administer  public  affairs  up- 
rightly where  it  did  not  conflict  too  much  with  his  own  interests.  In  all 
that  belongs  to  the  domestic  duties  and  in  the  more  private  relations  of 
life  his  conduct  would  seem  to  have  been  unexceptionable,  and  his  char- 
acter is  very  well  summed  up  by  the  remark  of  Hutchinson,  that  he 
had  as  many  private  virtues  as  was  consistent  with  a  man  of  worldly 
aims  and  aspiring  ambition. 

UER,  JOHN"  (born  in  Albany,  New  York,  October  7,  1782 ; 
died  on  Staten  Island,  August  8, 1858),  was  a  son  of  William 
Duer  of  the  Revolution.'  At  the  age  of  sixteen  he  joined 
the  United  States  army,  from  which  he  retired  in  two  years? 
entering  the  law  office  of  Alexander  Hamilton.  Although  his  early 
education  was  defective,  he  supplemented  it  by  thorough  study,  espec- 
ially in  the  classics  and  modern  languages.  He  began  legal  practice 
in  Orange  county,  and  soon  became  firmly  established  in  a  leading 
position  at  the  bar.  He  came  prominently  into  public  life  in  1821  as  a 
delegate  to  the  constitutional  convention,  in  which  he  distinguished 
himself  by  ability  and  eloquence.  In  1825  he  was  appointed  by  Gov- 
ernor Yates  to  till  the  vacancy  in  the  commission  to  revise  the  statutes 
of  the  state  made  vacant  by  the  resignation  of  Chancellor  Kent.     His 

1  William  Duer  (born  in  Devonshire,  England,  March  connty  judge,  a  member  of  the  New  York  provincial  con- 
18,  1747 ;  died  in  New  York  City,  May  7,  1799),  was  gress,  a  member  of  the  committee  of  safety,  a  mem- 
educated  at  Eton  and  accompanied  Lord  Clive  to  India,  berof  the  state  constitutional  convention  of  1776-77,  a 
as  aide-de  camp,  in  I7G2.  Inheriting  his  father's  es-  delegate  to  the  continental  congress  in  1777-78,  sec- 
tates  in  Antigua,  he  came  to  New  York  in  17()8  to  ar-  retary  of  the  treasury  board  in  1789  and  assistant-seo- 
range  for  lumber  supplies.  Here  he  made  land  and  retary  of  the  treasury  under  Hamilton.  He  failed  in 
other  investments,  and  took  up  his  residence.  He  was  1792  for  S3,O0O,0OO,  which  resulted  in  the  first  financial 
prominent  in   public   life,   was  a  colonel  of  niililia,  ii  panic  caused  by  speculation. 


iiisToitv  OK   iiiK  in:N(  II   AM)  itAi:  (»i-  NKW  vi»i;k  :{];) 

oriiiiniil  Mssocialt's  in  this  work  wcic  Hcii  jiiiiiiii  l'\  I'lit  In- niid  ll<-iiiy 
Wiit'iiton  ;  bill,  Mr.  Wlicjiton  prcsmdy  icsii-iicd,  and  liis  phicr  u:is 
lillt'd  by  tlic  appointiiitMit  of  .John  (J.  Spencer.  Mr.  Diier  (routribiiled 
vahiably  to  the  hibors  of  the  revisers,  notwithstanding  the  j)ressiire  of 
Ids  professional  duties.  Meantime,  in  1827,  he  had  been  appointed 
I'nited  States  district-attorney  at  New  York  City,  and  in  ls-J8  he 
resigned  from  flie  commi-ssioii.  At  the  close  of  tlie  Adams  adminis- 
tration lie  resumed  his  private  j)ractice  in  New  York.  He  devoted 
himself  especially  to  commercial  law.  In  184.5  and  1840  he  published 
the  iirst  two  volumes  of  an  exhaustive  work,  "A  Treatise  on  the  Law 
and  Practice  of  Marine  Insurance."  The  plan  of  this  work  contem- 
plated three  volumes,  but  it  was  never  completed.  In  1849,  at  the 
election  for  judges  of  the  Superior  Court  of  the  City  of  New  York,  he 
was  chosen  to  that  bench,  and  in  May,  1857,  he  became  its  chief -justice, 
as  snccessor  to  Thomas  J.  Oakley.  He  tilled  that  office  until  his  death. 
In  his  latter  years  he  edited  and  published  five  volumes,  and  part  of  a 
sixth,  of  reports  of  the  Superior  Court. 


ITER,  WILLIAM  (born  in  New  Y^ork  City,  May  25,  1805 ; 
died  there,  August  25,  1879),  was  a  son  of  William  Alexander 
Duer  (q.  v.).  He  was  graduated  from  Columbia  College  in 
1824,  was  admitted  to  the  bar  and  began  the  practice  of  law 
in  Oswego.  From  there  he  removed  to  New  York  City  in  1832.  The 
next  year  he  went  to  New  Orleans,  and  returning  in  1835  he  again 
settled  in  Oswego,  where  he  served  as  county  district-attorney  (1845-47) 
and  was  twice  elected  to  congress  (1847  and  1849).  Later  he  was  min- 
ister to  Chili  until  1854  and  practiced  law  in  San  Francisco.  He 
returned  to  New  York  in  1858  and  lived  in  retirement  until  his  death. 


UER,  WILLIAM  ALEXANDER  (born  in  Rhinebeck,  New 
York,  September  8,  1780;  died  in  New  York  City,  May  30, 
1858),  was  a  son  of  William  Duer  and  a  brother  of  John 
Duer,  the  reviser.  He  began  the  study  of  the  law  in  Phila- 
delphia and  continued  it  under  Nathaniel  Pendleton  in  New  York, 
being  admitted  to  the  bar  in  1802.  lie  formed  an  association  with 
Edward  Livingston  and  afterward  with  his  brother-in-law,  Beverley 
Robinson.  Deciding  to  unite  his  fortunes  to  those  of  Edward  Living- 
ston at  New  Orleans,  he  removed  to  that  city,  where  he  made  a  study 
of  Spanish  civil  law  and  practiced  successfully.  His  health,  however, 
was  impaired  by  the  climate,  and  having  married  a  daughter  of  Wil- 
liam Denning  of  New  York,  he  returned  to  that  city.  In  1814  he 
removed  his  law  practice  to  Rhinebeck,  New  York.  While  residing 
there  he  was  elected  to  the  assembly,  and  in  that  body  he  was  the 
author  of  a  law  which  became  the  basis  of  the  present  statute  on  the 


816 


UISTOKY  OF  THE  BENCH  AND  BAK  OF  NEW  YORK 


common  school  income,  and  also  was  a  promoter  of  canal  legislation 
and  of  the  act  vesting  in  Livingston  and  Fulton  the  right  of  naviga- 
tion. He  became  a  judge  of  the  Supreme  Court  in  1822,  serving  until 
1829.  He  was  president  of  Columbia  College  from  1829  until  his  resig- 
nation in  1842.  He  was  from  his  earliest  years  a  contributor  to  cur- 
rent literature,  wrote  various  pamphlets  of  historical  interest  and 
delivered  a  number  of  able  lectures  and  addresses.  Notable  among 
his  writings  is  his  life  of  his  grandfather,  William  Alexander,  Earl  of 
Stirling  (New  York,  1847).     

TINNING,  BENJAMIN  F.  (born  in  Orange  county,  New 
York,  April  15,  1819  ;  died  in  New  York  City,  October  17, 
1895),  was  graduated  at  Union  College  and  began  law  prac- 
tice in  Goshen,  New  York.  In  1853  he  became  an  assistant 
of  Charles  O'Conor  in  the  office  of  United  States  district-attor- 
ney for  southern  New  York,  and  at  the  expiration  of  his  term  he 
entered  the  law  firm  of  O'Conor,  Fullerton  &  Dunning,  which,  upon 
Judge  Fullerton's  withdrawal,  became  O'Conor  &  Dunning,  retaining 
that  name  until  Mr.  O'Conor  retired  from  active  practice.  Mr.  Dun- 
ning then  succeeded  to  the  important  business  which  the  great  repu- 
tation of  the  firm  had  attracted.  In  1872  he  was  nominated  for  judge  of 
the  Court  of  Common  Pleas  of  the  City  of  New  York,  but  declined. 


WIGHT,  FRANCIS  (born  in  Springfield,  Massachusetts,  March 
14,  1808  ;  died  in  Albany,  New  York,  December  15,  1845), 
was  graduated  in  1827  from  the  collegiate  department  of 
Harvard,  and  in  1830  from  the  law  school,  being  admitted  to 
the  bar  in  1834  after  completing  a  European  tour.  He  practiced  law 
until  1838  in  Massachusetts,  Michigan,  and  New  York,  when  he  dis- 
continued his  active  connection  with  the  profession.  He  took  a  strong 
interest  in  public  school  matters,  and  left  his  impress  on  state  legis- 
lation by  originating  and  bringing  to  adoption  the  New  York  state 
code  of  public  instruction.  From  1840  until  his  death  he  published  the 
District  School  Journal,  under  the  auspices  of  the  state  government. 


WIGHT,  THEODORE   WILLIAM  (born    in  Catskill,  New 

York,  July  18,  1822  ;  died  in  Clinton,  New  York,  June  30, 

1892),  was  a  son  of  Doctor  Benjamin  Woolsey  Dwight.'     He 

was  graduated   from   Hamilton  College  in  1840,  and  after 

completing  a  course  at  the  Yale  Law  School  returned  to  Hamilton  as 

» Benjamin  Woolsey   Dwight   studied    medicine   in  Dwight,  who  in  1880  succeeded   Noah  Porter  in   the 

Phihidelphia  under  Benjamin  Rush,  but  abandoned  its  Yale  presidency. 

practice  on  account  of  ill-health  and  engaged  in  mercan-  The  American  ancestor  of  the    Dwight  family  was 

tile  pursuits.  He  wrote  a  notable  pamphlet  on  "Chronic  John  Dwight,  who  came  to  this  country  in   1B34  and 

Debility  of  the  .Stomach."   Ills  father  was  the  illustrious  became  one  of  the  original  settlers  of  Dedham,  Massa- 

Timothy  Dwight,  president  of  Yale  College  from  1795  to  chusetts.    One  of  his  descendants  was  Major  Timothy 

1817.    Theodore  William  Dwight  was  a  cousin  of  Presi-  Dwight,  of  Northampton,  wlio  married  a  daughter  of 


Theodore   Woolsey,   of  Yale,   and  of  Timothy     Jonathan  Edwards. 


iiisroKV  OK  'iiiK  m:N('ii   a.no  hak  of  m;\v   voi;k  :{I7 

;i  lulor.  'riicrc  lie  was  iiiadi'  profcssoi-  in  iSlt'..  !!(«  was  llic  foiiiKl/'r  of 
Ilaiiiiltoii  Law  School,  and  iJicsulcd  ovci-  it  until  1n.")S,  uiicn,  btjin;^ 
elected  j)rofessor  of  nmnicipal  law  in  Cohinibia  Colle<^e,  he  came  to 
New  Vork.  He  or<i,:inized  the  Columbia  I^aw  School  and  was  its  sole 
instru(!tor  until  lST.i,  when  the  faculty  was  enlarged.  In  1801 
h(>  retired  from  the  institution  and  was  made  professor  emeritus. 
During-  the  thirty-three  years  that  he  was  at  its  liead  over  ten  tliou- 
sand  students  were  under  his  instruction  and  nuiny  of  the  distin- 
guish(>d  lajid(>rs  of  tlie  bar  in  New  York  and  throughout  the  country 
were  his  pupils. 

Professor  Dwight's  fame  as  a  legal  instructor  is  universal  and  en- 
during. Professor  James  Bryce,  the  eminent  author  of  "  The  Ameri- 
can Commonwealth,"  in  an  article  on  '"Tlie  Legal  Profession  in 
America,"  written  after  a  visit  to  this  country,  said  of  him  : ' 

Columbia  Collcf^e  in  New  York  is  fortunate  in  possessing  a  professor  of  great 
legal  abilities,  and  an  extraordinary  gift  of  exposition,  whose  class-rooms,  like  those 
at  Harvard,  are  crowded  by  large  and  highly  intelligent  audiences.  Better  law 
teaching  than  Mr.  Dwight's  it  would  be  hardly  possible  to  imagnie.  It  would  be 
worth  an  English  student's  while  to  cross  the  Atlantic  to  attend  his  course. 

Theodore  W.  Dwight  will  be  remembered  as  one  of  tlie  most  im- 
portant New  Yorkers  of  his  generation.  His  activities  were  wide  and 
varied  in  other  dejiartments  than  that  of  legal  education.  He  was  vice- 
president  of  the  state  board  of  charities,  president  for  many  years  of 
the  New  York  prison  association  for  helping  discharged  convicts,  a 
member  of  the  constitutional  convention  of  1867  (serving  on  its  judici- 
ary committee),  a  member  of  the  commission  of  appeals  (1874-75),  a 
member  of  the  committee  of  seventy,  and  for  a  time  chairman  of  its 
committee  on  legislation.  He  was  a  master  of  languages,  president  of 
the  Dante  Club,  counsel  and  referee  in  many  important  cases,  and  an 
excellent  contributor  to  legal  literature,  being  the  author  of  several 
works  in  constant  use,  especially  in  suits  involving  charitable  uses  and 
trusts.    He  collected  a  valuable  law  library. 


DMONDS,  JOHN  WORTH  (born  in  Hudson,  New  York, 
March  13,  1799  ;  died  in  New  York  City,  April  5,  1874),  was 
a  grandson  of  Thomas  Worth,  one  of  the  first  settlers  of  Hud- 
son. He  was  graduated  in  1816  from  Union  College  and 
studied  law  at  Cooperstown  in  the  oflBce  of  George  Monell,  afterward 
chief-justice  of  Michigan.  In  1819  he  entered  the  office  of  Martin  Van 
Rnren  at  Albany,  and  in  1820  he  began  the  practice  of  the  profession 
at  Hudson.  Whilst  residing  there  he  held  various  offices,  was  promi- 
nent in  the  legislature,  and  was  sent  on  a  government  mission  to  the 
Indians.    In  1843  he  removed  to  New  York  City,  where  he  soon  en- 

MacMillan'f!  Mnqazine,  Vol.  xxv.,  pp.  20G-218. 


818  HISTORY   OF   THE   BENCH   Al^D   BAR   OF   XEW   YORK 

joyed  a  high  reputation.  He  was  appointed  state  prison  inspector  in 
1S43,  and  he  founded  the  prison  association  for  the  amelioration  of  the 
condition  of  convicted  criminals,  and  also  for  enabling  discharged  con- 
victs to  earn  an  honest  livelihood.  From  1815  to  1853  he  was  succes- 
sively circuit  judge,  judge  of  the  Supreme  Court,  and  judge  of  the 
Court  of  Appeals.  He  was  distinguished  on  the  bench  for  the  quali- 
ties of  sound  judgment,  thorough  knowledge  of  the  law,  industry,  and 
energy. 

In  1853  he  resumed  his  private  practice  in  New  York.  Ha  published 
in  1864  five  volumes  of  "New  York  Statutes  at  Large,"  containing  the 
revised  statutes  and  the  general  statutes  to  1863.  Describing  the 
labors  that  he  performed  in  connection  with  this  publication,  he  said 
that  they  involved  "the  perusal  of  some  45,000  pages  of  statute  law, 
about  one-half  of  which  I  have  gone  over  eight  or  ten  times,  and  the 
examination  of  some  25,000  reported  cases,  half  of  which  I  have  had  to 
examine  twice  over."  This  work  was  promptly  accepted  by  the  bar  as 
a  standard  authority.  He  afterward  added  two  supplemental  volumes 
and  an  index.  In  1868  he  published  a  volume  of  cases  decided  by  him- 
self, mostly  at  nisi  prius.     He  was  a  staunch  believer  in  spiritualism. 


DWAKDS,  CHARLES  (born  in  Norwich,  England,  March  17, 
1797  ;  died  in  New  York  City,  May  30,  1868),  was  an  exten- 
sive writer  on  law  and  other  subjects.  Among  his  legal 
works  are  "The  Juryman's  Guide"  (1831),  "Parties  to  Bills 
and  Other  Pleadings"  (1832),  "Receivers  in  Chancery"  (1839-46), 
"  Reports  of  Chancery  Cases,  1st  New  York  Circuit — 1831-45  "  (4  vols.), 
"  Receivers  in  Equity"  (1857),  and  "  Referees"  (1860).  He  was  grad- 
uated at  Cambridge,  England,  and  emigrated  to  New  York,  where  he 
practiced  law.  He  was  counsel  to  the  British  consulate-general  for  a 
quarter  of  a  century.  

DWARDS,  HENRY  PIERREPONT  (born  in  1809  ;  died  in 
New  York  City,  February  24,  1855),  was  a  lineal  descendant 
of  Reverend  Jonathan  Edwards  and  son  of  Henry  Waggaman 
^^  Edwards,  governor  of  Connecticut  and  United  States  senator 
from  that  state.  He  served  for  seven  years  as  judge  of  the  Supreme 
Court  of  New  York,  ranking  high  for  legal  and  judicial  ability. 


DWARDS,  OGDEN  (born  in  Connecticut  in  1781 ;  died  on 

Staten  Island,  April  1,  1862),  was  an  uncle  of  the  preceding. 

Early  in  the  century  he  became  a  prominent  member  of  the 

New  York  bar.     He  was  surrogate  for  a  long  term  of  years, 

a  member  of  the  legislature,  a  delegate  to  the  state  constitutional  con- 


iiisroKv  OK  Till':  in:N(ii   and  hwi  ok  m:\v   vokk 


:!l!) 


vention  of  1821,  and  afterwanl  circuit  judge  of  lh(»  SuprcuK^  Court  until 
IS41,  when  he  n'lircd,  liavini^  icaclicd  the  age  limit,  lie  wa.s  a  whig, 
and  ran  for  governor  imsucce.ssfully  on  the  ticket  of  his  jiarty. 


r.Y,  ALFRED  (born  in  Ljone,  New  London  county,  Connecti- 
cut, February  18,  1815;  died  May  18,  1892),  was  admitted 
to  the  bar  at  Rochester  in  1841,  and  began  practice  there, 
lie  was  for  years  a  well-known  lawyer  of  that  city.  He 
served  in  congress  as  a  republican  from  1859  to  18(18.  Early  in  the 
war,  having  been  sent  to  the  battlefield  of  Bull  Run  as  a  civilian 
inspector,  he  was  taken  prisoner  and  confined  in  Libby  ])rison,  where 
he  remained  for  six  months.  He  afterward  published  liis  diary,  en- 
titled "  Journal  of  Alfred  Ely,  a  Prisoner  of  War  in  Richmond." 


liSOrET,  ROBERT  (born  in  Ireland  about  1792  ;  died  in  New 
Rochelle,  New  York,  September  16,  1873),  a  son  of  Thomas 
Addis  Emmet  (q.v.),  was  brought  to  this  country  in  his  boy- 
hood by  his  father.  lie  adopted  the  legal  profession,  w^as 
held  in  high  regard  by  the  members  of  the  bar,  and  became  a  justice 
of  the  Superior  Court. 

He  was  more  especially  distinguished  for  his  active  efforts  in 
behalf  of  his  native  land,  and  was  conspicuously  trusted  and  esteemed 
by  the  representative  men  of  the  Irish  race  resident  in  New  York  City. 
In  1848,  when  an  insurrection  was  contemplated  in  Ireland,  he  cordially 
co-operated  with  his  countrymen  in  New  York  in  demonstrations  of 
sympathy,  and  was  one  of  the  directory  formed  for  the  purpose  of 
sending  material  aid  to  the  Irish  patriots.  He  was  an  impassioned 
speaker.  At  the  great  meeting  held  at  the  Tabernacle,  June  6, 1848,  he 
delivered  an  address  in  which  he  said  :  "  If  Ireland  cannot  achieve  her 
independence  Avithout  bloodshed,  let  it  be  Avitli  blood.  I  know  some- 
thing of  the  horrors  of  civil  war  in  Ireland,  but  if  it  must  come,  I  am 
not  now  too  old,  and  I  shall  be  found  in  the  ranks  of  the  people  of  my 
native  island." 


MMET,  THOMAS  ADDIS  (born  in  Cork,  Ireland,  April  24, 
1764  ;  died  in  New  York  City,  November  14,  1827),  was  a  son 
of  an  eminent  physician  in  Dublin  and  brother  of  Robert 
Emmet,  the  famous  Irish  patriot,  who  was  executed  in  Dub- 
lin in  1803.  He  was  educated  for  the  medical  profession  and  passed 
through  Trinity  College,  Dublin,  and  also  Edinburgh  University,  and 
obtained  his  degree.  He  abandoned  medicine  to  take  up  law,  and 
entered  as  a  student  at  the  Temple,  London,  find  in  1791  was  admitted 


320  HISTORY    OF   THE   BENCH   AND    BAR   OF   NEW  YORK 

to  the  Irish  bar.  After  his  admission  he  assisted  his  brother  Robert 
in  writing  articles  on  Irish  government,  and  they  both  went  to  the  con- 
tinent of  Europe  to  enlist  help  for  Ireland's  freedom.  Thomas  remained 
at  Brussels  while  Robert  crossed  to  Ireland  and  engaged  in  the  under- 
taking which  brought  him  to  the  gallows.  Thomas  followed  his 
brother  to  Ireland  and  was  arrested,  charged  with  being  the  head  of 
the  "  United  Irishmen,"  which  was  alleged  to  be  a  treasonable  organ- 
ization. He  was  confined  in  jail  in  Ireland  and  afterward  in  Scotland. 
Being  liberated,  he  went  first  to  Paris  and  in  1804  came  to  America 
and  settled  in  New  York,  in  which  city  he  practiced  law  the  rest  of  his 
life.  In  1812  he  was  appointed  attorney-general  of  the  state.  He  was 
retained  in  many  of  the  important  cases  tried  in  New  York  City,  and 
also  often  appeared  before  the  Supreme  Court  of  the  United  States. 
He  was  one  of  the  counsel  opposed  to  Webster  in  the  great  case  of 
Gibbons  vs.  Ogden,  9  Wheaton,  1.  His  argument  in  this  case  attracted 
wide  attention  and  won  encomiums  from  Webster  himself.  He  once 
sued  Chancellor  Livingston  in  behalf  of  a  client  who,  he  claimed,  had 
been  unlawfully  imprisoned  by  the  chancellor's  order,  but  in  that  suit 
he  was  defeated,  the  Court  for  the  Correction  of  Errors  deciding  that  a 
judge  is  not  liable  for  a  mistake  in  judgment. 

The  early  New  York  reports  show  him  to  have  been  engaged  in  a 
very  extensive  law  practice,  involving  all  manner  of  .questions,  from 
those  of  constitutional  and  international  law  to  those  of  libel.  He  was 
the  counsel  of  Governor  Lewis  in  his  libel  case  against  the  editor  of 
the  American  CUize7i.  Emmet  was  noted  for  his  courtesy  while  at  the 
bar,  never  indulging  in  any  vituperative  epithets  or  abusing  his  oppo- 
nent, but  his  gentlemanly  instincts  did  not  prevent  him  from  using  to 
the  utmost  all  his  ingenuity  and  shrewdness  on  behalf  of  his  client. 
Many  interesting  anecdotes  are  told  illustrative  of  his  natural  and  legal 
cleverness.  He  died  from  apoplexy,  the  stroke  of  which  came  on  him 
in  the  court-room  in  New  York  City  while  engaged  in  the  trial  of  a 
case.  Although  not  buried  there,  he  has  a  commemorative  shaft  in 
Saint  Paul's  churchyard  on  lower  Broadway,  New  York  City.  Before 
his  death  he  published  "Pieces  of  Irish  History."  Judge  Story  thus 
wrote  of  him  : 

His  mind  was  quick,  vig'orous,  searching,  and  buoyant.  He  kindled  as  he 
spoke.  His  rhetoric  was  never  florid  and  his  diction,  though  select  and  pure, 
seemed  the  common  dress  of  his  thoughts  as  they  arose,  rather  than  any  studied 
effort  at  adornment. 


IF^^TIMMET,  THOMAS  ADDIS  (born  in  Ireland  in  1798  ;  died 
l^^tM*  ^^  Astoria,  Long  Island,  August  12,  18(53),  was  a  son  of  the 
lEi^SlI  preceding.  Though  not  as  distinguished  as  his  father  and 
'  brother  Robert,  he  was  a  good  lawyer,  and  as  master  of  chan- 

cery for  a  long  x)eriod  made  a  creditable  record. 


IK    rilK    KKNCII    AM>    HWl    i>F    MsW      VoKK  :i2\ 


MOTT,  .lAMKS  (born  in  Pou^^likccjisi.',  X.'w  York,  M;iicli  I  1, 
1771  ;  (lied  llMM-e  Ai)ril  7,  isr)(»),  know  n  :is  .1  ii(l<i:<' .lanics  l-;ni(»n 
"tli(^  elder,"  was  self-edncated,  and,  after  studying  law  and 
beiniz;  admitted  to  tlie  bar,  opened  a  law  oflice  at  liall.ston 
Centre,  New  York,  removing;  from  there  to  Albany  abont  isod.  He 
was  soon  re<;arded  as  the  jieer  of  the  ^reat  lawyers  of  tliat  brilliant  era 
of  the  New  Y'ork  state  bar.  lie  held  important  pnblio  ofliees.  In  1797 
lie  was  ai)iK)inted  a  commissioner  to  settle  the  dispntes  to  lands  in  the 
military  tract  of  Onondaga  county  ;  he  was  a  member  of  the  New  York 
assembly  for  a  nnmber  of  years,  being  its  speaker  in  1814,  and  a  repre- 
sentative in  congress  from  1S09  to  1S13,  being  i)rominent  among  the 
federalist  members  of  tliat  body.  His  judicial  career  extended,  with  a 
brief  intermission,  from  1817  to  1831.  Upon  the  organization  of  the 
Dutchess  county  Court  of  Common  Pleas  in  1817  he  was  selected  its 
first  judge.  In  1827  he  became  judge  of  the  2d  judicial  circuit.  He 
resigned  the  office  in  1831. 

jMOTT,  JAMES  (born  in  Poughkeepsie,  New  York,  April  23, 
1823  ;  died  there,  September  11, 1884),  a  son  of  tlie  preceding, 
was  graduated  with  the  first  .honors  from  Columbia  College 
in  1838.  Admitted  to  the  bar  of  the  Supreme  Court  at 
Poughkeepsie  in  1844,  he  entered  upon  the  practice  of  the  law  there, 
with  successful  results  from  the  start.  In  1849  he  was  appointed  dis- 
trict-attorney of  Dutchess  county,  and  he  became  the  first  mayor  of 
Poughkeepsie  upon  the  granting  of  its  charter  in  1854.  This  office 
he  resigned  to  become  a  justice  of  the  Supreme  Court  for  the  2d 
judicial  district  in  November,  1855.  He  sat  on  that  bench  from  Jan- 
uary 1,  1856,  to  January  1,  1864,  being  appointed  presiding  judge 
of  the  district  in  1863  and  serving  ex-officio  as  judge  of  the  Court  of 
Ai)peals  during  the  last  year  of  his  term.  After  his  retirement  from 
the  bench  he  came  to  New  York  City  to  practice  law,  and  was  retained 
in  very  many  important  litigations.  Hardly  any  case  of  note  involv- 
ing questions  of  law  applicable  to  corporations  arose  in  the  City  of 
New  York  during  the  last  ten  years  of  his  practice  in  which  he  was 
not  employed.  In  the  last  two  years  of  his  life  he  was  prevented  by 
infirmity  from  conducting  cases  in  court,  but  his  advice  as  chamber 
counsel  was  largely  sought  for,  and  many  admirable  briefs  proceeded 
from  his  pen  after  he  was  unable  to  stand  and  address  the  bench. 

The  opinions  delivered  by  Judge  Emott  from  the  bench  were 
marked  by  great  research,  logical  reasoning,  clear  statement  of  legal 
principles,  and  careful  examination  of  the  facts  of  each  case.  As  rep- 
resentative specimens,  his  opinions  in  the  matter  of  the  Chenango 
Bridge  (27  N.  Y.  R.,  105),  in  the  People  vs.  Kerr  (27  N.  Y^.  R.,  188),  and 
in  the  Metropolitan  Bank  vs.  Yan  Dyke  (27  N.  Y.  R.,  486)  may  be 
mentioned. 

He  was  one  of  the  organizers  of  the  Association  of  the  Bar  of  the 


322  HISTORY   OF  THE  BENCH    AND   BAR   OF   NEW   YORK 

City  of  New  York,  a  member  of  tlie  Union  League  club,  and  a  prom- 
inent member  of  the  celebrated  committee  of  seventy.  He  took  an 
especial  interest  in  the  concerns  of  the  Association  of  the  Bar,  and  was 
chairman  of  its  library  committee  from  the  beginning.  Upon  his 
retirement  from  that  position  in  1888,  the  executive  committee  testi- 
fied its  strong  appreciation  of  his  services  by  a  resolution  reciting  that 
the  library  owed  "  its  existence  as  well  as  its  present  efficiency  largely 
to  his  comprehensive  knowledge  of  legal  literature  and  his  sound  and 
discriminating  judgment  in  the  organization  and  development  of  the 
various  classes  of  which  so  great  a  library  is  necessarily  composed." 
"  The  very  inception  of  the  library,"  the  committee  added,  "  is  due  to 
his  energy  in  the  organization  of  the  '  century  fund,'  made  up  of  the 
subscriptions  of  a  hundred  members  of  the  association  at  the  time  of 
its  organization." 

Although  the  last  twenty  years  of  his  professional  life  were  passed 
in  New  York,  he  retained  his  residence  in  Poughkeepsie.  For  thirty- 
two  years  he  was  president  of  the  Merchants'  Bank  of  that  city. 


WING,  THOMAS  (born  in  Lancaster,  Ohio,  August  7,  1829  ; 
died  in  New  York  City,  January  21,  1896),  was  the  third  son 
of  that  eminent  lawyer  and  statesman,  Thomas  Ewing,  sen- 
ator from  Ohio,  secretary  of  the  treasury,  and  first  secretary 
of  the  interior.  He  was  of  Scotch- Irish  descent  and  traced  his  lineage 
from  Findley  Ewing,  of  Londonderry,  Ireland,  a  native  of  Lower  Loch 
Lomond  in  Scotland,  who  distinguished  himself  in  the  war  of  1688  under 
William  of  Orange.  His  paternal  grandfather,  George  Ewing,  was  a 
lieutenant  in  the  war  of  the  Revolution.  At  nineteen  Thomas  Ewing 
was  secretary  of  the  commission  to  settle  the  question  of  the  boundary 
between  Virginia  and  Ohio,  and  a  year  later  he  became  one  of  the  sec- 
retaries of  President  Taylor.  He  later  entered  Brown  University,  and 
graduated  from  that  institution  in  1854.  The  following  year  he  com- 
l^leted  his  law  studies  at  the  Cincinnati  Law  School,  and  in  1856  began 
practice  at  Leavenworth,  Kansas,  in  the  firm  of  Sherman,  Ewing  & 
McCook,  including  General  Dan  McCook  and  General  William  T. 
Sherman.  General  Ewing  soon  placed  himself  at  the  head  of  his  pro- 
fession in  Kansas,  and  took  a  conspicuous  part  in  the  struggle  which 
made  it  a  free  state.  He  represented  Kansas  in  the  peace  conference 
assembled  in  Washington  in  1860,  and  at  the  age  of  twenty-nine  was 
elected  first  chief-justice  of  the  Supreme  Court  of  that  state.  He  took 
an  active  part  in  the  struggle  to  make  Kansas  a  free  state,  and  was  a 
member  of  the  free  state  convention,  though  he  bolted  the  convention 
on  the  discovery  of  the  frauds  perpetrated  by  the  enemies  of  the  free 
state  constitution. 

He  first  appears  in  the  civil  w^ar  as  colonel  of  the  11th  regiment  of 
Kansas  volunteer  infantry,  recruited  and  organized  by  him  in  1862.  He 
led  his  command  in  several  severe  engagements  in  Arkansas— at  Cane 


IIISI'OUY    (»K   TlIK    ISKNCII    AND    H.\\l    ill'    NKW    VOIIK  'A^'.i 

TTill,  Van  Biiivn,  and  Piaiiic  Grovo, — and  for  gallant  condurt  wus  i)ro- 
inott'd  to  be  brigadier-general  on  the  1  Itli  of  March,  180:}.  Soon  after  he 
was  ji.ssi<;ned  to  the  important  coniniand  of  tlie  "  dintrict  of  the  border," 
comprising  tlie  State  of  Kansas  and  the  western  ])ortion  of  Missouri, 
which  lie  lield  from  June,  \t^(V.i,  to  February,  1804,  and  in  whicli  he 
won  the  emi)hatic  approval  of  President  Lincoln  and  (General  Scholield. 
His  "  Order  No.  11,"  issued  while  he  held  this  command,  directing  tin* 
inhabitants  of  large  portions  of  three  border  counties  of  southern 
Missouri  to  remove  to  the  military  posts  or  out  of  the  border,  was  and 
is  still  severely  criticised.  It  was  the  result  of  a  Jieculiarly  difficult 
situation,  solvable  in  no  other  way,  and  it  is  enough  to  say  that  in  a 
published  letter  General  Scholield  said  :  "  The  responsibility  for  that 
order  rests  with  President  Lincoln  and  myself  in  the  proportion  of  our 
respective  rank  and  authority."  General  Ewing's  most  distinguished 
service  during  the  war  was  in  lighting  the  battle  of  Pilot  Knob  on  the 
27th  and  28th  of  September,  1864.  General  Kosecrans  in  a  special 
order  says  of  this  brilliant  episode  : 

With  pride  and  pleasiu'e  the  commanding  gfeneral  notices  the  gallant  conduct  of 
Brigadier-General  Thomas  Ewing,  Junior,  and  his  connnand,  in  the  defence  of  Pilot 
Knob,  and  in  the  subsequent  retreat  to  Rolla.  With  scarcely  one  thousand  etl'ective 
men  thej-  repulsed  the  attack  of  Price's  invading  army,  and  successfully  retreated 
with  their  battery  a  distance  of  one  hundred  miles  in  the  face  of  a  pui-suing  and 
assailing  cavalry  force  of  five  times  their  number.  General  Ewing  and  his  subordi- 
nates have  deserved  well  of  their  country.  Under  such  commanders,  federal  com- 
manders should  always  march  to  victory. 

After  the  war  until  1 880  General  Ewing  was  conspiciious  in  Ohio 
and  national  politics.  He  was  a  member  of  the  Ohio  constitutional  con- 
vention of  1873-74,  where  his  legal  attainments  and  admirable  powers  of 
debate  gave  him  a  foremost  place.  He  was  a  member  of  the  45th  and 
46th  congresses,  and  took  an  active  part  in  their  proceedings.  In  1879 
he  was  the  democratic  candidate  for  governor  of  Ohio,  but  was  defeated. 
A  ripe  scholar,  a  strong,  ready  and  graceful  speaker,  an  expert  parlia- 
mentarian, and  possessing  a  personal  magnetism  which  irresistibly 
attracted  and  firmly  held  the  attention  of  the  masses,  he  was  admirably 
equipped  as  a  popular  leader. 

Since  1882  lie  held  aloof  from  active  participation  in  politics  and 
engaged  with  great  success  in  the  practice  of  the  law  in  New  York 
City.  He  was  one  of  the  founders  of  the  Ohio  society  of  New  York, 
and  for  three  years  its  president. 


lARWELL  (or  FARRAWELL),  GEORGE,  was  appointed  in 
1091,  with  William  Nicoll  and  Emott,  to  prosecute  Leisler. 
It  is  supposed  that  he  was  "  West's  creature,"  mentioned  in 
a  letter  A\Titten  by  Randolph,  of  Massachusetts,  from  Boston, 
Jannary,  1688,  to  Mr.  Povey.  "  I  have  wrote  you,"  said  Randolph, 
"of  the  want  we  have  of  two  or  three  honest  attorneys  (if  any  such 


324  IIISTOKY   OF  THE   BENCH   AND   BAR   OF   NEW   YORK 

thing  be  in  nature).  We  have  but  two  ;  one  is  West's  creature  ;  came 
with  him  from  New  York,  and  drives  all  before  him.  He  also  takes  ex- 
travagant fees,  and  for  want  of  more,  the  country  cannot  avoid  coming 
to  him,  so  that  we  had  better  be  quite  without  them  than  not  to 
have  more."' 

ELLOWS,  JOHN  RANDOLPH  (born  in  Troy,  New  York,  in 
1831  ;  died  in  New  York  City,  December  7,  1896),  emigrated 
to  Arkansas  as  a  young  man,  studied  law,  and  was  admitted 
to  the  bar.  When  the  war  broke  out,  although  a  northerner 
by  birth,  his  sympathies  were  strongly  with  the  confederacy,  and  he 
enlisted  as  a  private  in  the  confederate  army.  He  soon  rose  to  the  rank 
of  colonel  and  served  until  the  capture  of  Fort  Fisher,  when  he  was  taken 
prisoner  and  was  put  under  parole  until  the  close  of  the  war.  Then  he 
resumed  his  practice  in  Little  Rock,  Arkansas,  where  he  married.  He 
came  to  New  York  during  the  Grant-Seymour  campaign,  and  one  of  his 
speeches  in  support  of  the  democratic  candidate  attracted  wide  atten- 
tion for  its  oratorical  brilliancy.  Shortly  after  he  was  appointed  assist- 
ant-district-attorney of  New  York  City  under  S.  B.  Garvin.  He  served 
in  this  capacity  until  1887,  when  he  was  elected  district-attorney.  In 
1890  and  1892  he  was  elected  to  congress,  but  he  resigned  his  seat  in 
1893  to  again  become  district-attorney,  continuing  in  that  office  until 
his  death. 

During  his  official  career  he  conducted  a  large  number  of  impor- 
tant cases.  He  prosecuted  most  of  the  boodle  aldermen  and  secured  the 
convictions  of  several.  When  E.  S.  Stokes,  of  the  Hoffman  House, 
was  tried  for  the  murder  of  James  Fisk,  Colonel  Fellows  found  himself 
in  a  most  peculiar  position.  He  was  Stokes'  friend  and  legal  adviser, 
and  yet,  as  assistant-district-attorney,  he  was  assigned  to  conduct  the 
case  against  him.  He  did  so  and  secured  a  verdict  of  murder  in  the 
first  degree.  When  a  new  trial  was  granted  and  he  was  again  assigned 
to  the  case,  he  resigned  rather  than  continue  in  the  matter.  His  resig- 
nation was  not  accepted  and  another  assistant  was  assigned  on  the 
case.  

lELD,  DAVID  DUDLEY  (born  in  Haddam,  Connecticut,  Feb- 
ruary 13, 1805  ;  died  in  New  York  City,  April  13, 1894),  was  the 
eldest  child  of  the  Reverend  David  Dudley  Field  and  Sub- 
mit Dickinson,  his  wife."    When  a  boy  less  than  ten  years 
old  he  Imd  already,  under  his  father's  tutelage,  mastered  the  rudiments 

'  Qjiotcd  by  Washburn,  "Judicial  History  of  Massa-  of  the  eons,  was  the  projector  of  the  Atlantic  cable ; 

chusetts,"  p.  104.  Stephen  J.  Field,  another  son,  is  now  (1897)  one  of  the 

'•I  The  Field  family  is  a  notable  one  in  the  annals  of  justices  of  the  Supreme  Court  of  the  United  States  ; 
America.  The  father,  Heverend  David  Dudley  Field,  Henry  M.  Field,  a  third  son,  was  an  eminent  clergyman 
wns  ji  clergyman  of  great  learning  and  intellectual  force,  and  editor  ;  a  daughter,  Emilia  Ann,  nwrried  the  Rev- 
He  preached  at  Iladdam,  Connecticut,  and  Stockbridge,  erend  Josiah  Brewer,  and  their  son,  David  J.  Brewer,  is 
Massachusetts.  He  had  a  numerous  family,  all  of  whom  one  of  the  justices  of  the  Supreme  Court  of  the  United 
attained  more  or  less  distinction.    Cyrus  W.  Field,  one  States. 


IIISTOKY    OK   TIIK    HKNCIl     A.\l>    liAK    OK    NKW    VOKK  IJiii") 

of  liMtiii  Mild  (Jrct'k.  He  took  I  lie  four  years'  course  at  Williams  Col- 
lt>g(>  and  liriuliiatfd  tlicrcfroiii  in  1825.  He  then  went  fo  Albany,  New 
York,  and  read  law  with  liannanns  Bleecker,  but  soon  thereafter  went 
to  New  York  City,  where  in  1S28  he  was  licensed  as  an  attorney,  and 
in  18M()  was  admitted  as  counsellor.  From  the  time  of  his  admission 
to  the  bar  u])  to  within  a  few  years  of  his  death  lie  was  engaged  in  the 
active  practice  of  the  law  in  New  York  City,  becoming  one  of  the  fore- 
most lawyers  of  America,  lie  was  on  one  side  or  the  other  in  nearly 
all  the  celebrated  cases  tried  in  the  metropolis.  lie  took  i)art  in  the 
"Erie  litigation"  as  counsel  for  James  Fisk  ;  he  was  leading  counsel 
for  AVilliam  M.  Tweed,  in  which  case  he  succeeded  in  convincing  the 
Court  of  Appeals  that  ''cumulative  sentences"  for  misdemeanors  were 
not  warranted  by  law ;  he  was  leading  counsel  for  Samuel  J.  Tilden 
before  the  electoral  commission  and  argued  the  validity  of  the  electoral 
returns  from  Florida.  He  was  one  of  the  counsel  for  Milligan,  the  In- 
diana copperhead,  who  was  sentenced  by  a  court-martial  to  be  hanged 
for  treason.  Mr.  Field  induced  the  Supreme  Court  of  the  United 
States  to  decide  in  tliis  case  that  where  the  Judges  of  the  federal  Circuit 
Court  are  divided  in  opinion  on  the  merits  of  a  habeas  corpus  the  ques- 
tion could  be  certified  to  the  United  States  Supreme  Court ;  but  the 
real  triuni])!!  consisted  in  the  ruling  (sustaining  Mr.  Field's  contention) 
that  a  civilian  not  in  the  military  service  or  in  an  insurrectionary  state 
could  not  be  tried  by  court-martial,  but  must  be  tried  by  the  civil  tri- 
bunals. He  took  a  conspicuous  part  in  other  important  cases  before 
the  United  States  Supreme  Court. 

But  it  is  upon  his  achievements  as  a  codilier  rather  than  as  a  prac- 
ticing lawyer  that  Mr.  Field's  reputation  and  celebrity  rest.  In  1889 
he  addressed  a  letter  on  the  subject  of  the  necessity  of  codification  to 
Gulian  C.  Verplanck.  In  1841  he  submitted  to  the  legislature  several 
bills  codifying  certain  portions  of  the  law,  but  they  failed  of  passage. 
When  the  state  constitutional  convention  met  in  18-10  to  amend  the 
constitution,  Mr.  Field,  though  not  a  member,  brought  influence  to  bear  to 
have  the  convention  declare  for  codification  as  a  proper  means  to  rid 
the  law  of  its  traditional  terrors.  The  convention  recommended  that 
the  distinction  between  law  and  equity  should  be  abolished  and  that 
commissioners  should  be  appointed  to  prepare  codes.  In  1847  Mr. 
Field  was  appointed  one  of  the  commissioners  to  draft  appropriate 
codes,  and  in  such  capacity  he  prepared  the  celebrated  New  York  code 
of  civil  procedure,  which  was  passed  by  the  legislature  and  went  into 
operation  in  181:8.  He  drafted  and  submitted  to  the  legislature  at 
various  times  three  other  codes,  one  called  the  penal  code,  stating  the 
substantive  criminal  law,  which  was  adopted  by  the  legislature  in  1882; 
another,  the  code  of  criminal  procedure,  dealing  with  the  adjective 
criminal  law,  adopted  in  1881 ;  and  the  third — his  most  ambitious  un- 
dertaking— the  so-called  civil  code,  which  deals  with  substantive  civil 
law,  but  which  has  failed  of  passage.    His  code  of  civil  procedure  is  the 


326  HISTORY   OF  THE   BENCH  AND   BAR   OF  NEW   YORK 

prototype  for  the  practice  codes  of  twenty-seven  other  states  and  three 
territories,  while  his  civil  code  has  been  enacted  in  the  main  in  Cali- 
fornia and  the  two  Dakotas.  In  1866  he  advocated  before  the  English 
association  for  the  promotion  of  social  science  the  preparing  and  adopt- 
ing of  international  codes,  the  distinctive  feature  of  which  should  be 
arbitration  and  the  abolition  of  war.  He  drafted  an  international  code 
called  "  Outlines  of  an  International  Code,"  which  has  been  translated 
into  Chinese,  Italian,  and  French.  He  was  the  first  president  of  the 
"  association  for  the  reform  and  codification  of  the  laws  of  nations." 

Mr.  Field  never  took  a  very  active  part  in  politics,  but  was  a  mem- 
ber of  congress  in  1877,  being  elected  to  fill  the  unexpired  term  of 
Smith  Ely,  who  had  been  elected  mayor  of  New  York  City.  As  a 
member  of  congress  he  was  regarded  as  Mr.  Tilden's  spokesman  on  the 
floor,  and  he  took  a  very  active  part  in  the  Hayes-Tilden  contested 
election  case.  His  writings  and  attitudes  on  the  various  questions  of 
the  day,  including  his  favorite  subject  of  codification,  may  be  found  in 
a  collected  form  in  his  "  Speeches,  Arguments,  and  Miscellaneous  Pa- 
pers," published  in  1886. 


lELD,  MAUNSELL  BRADHURST  (born  in  New  York  City, 
March  26,  1822  ;  died  there,  January  24, 1875),  was  graduated 
from  Yale  College  in  1841  and  was  admitted  to  the  bar  in 
^  1847.  He  began  the  practice  of  the  law  in  New  York  with 
John  Jay.  He  travelled  extensively  and  filled  positions  in  the  diplo- 
matic service  of  the  United  States,  being  secretary  of  legation  at  Paris 
under  John  Y.  Mason  and  attached  to  the  legation  at  the  Spanish 
capital  under  Pierre  Soule.  He  was  one  of  the  American  commission- 
ers to  the  Paris  exposition  in  1855.  Later  he  was  assistant-secretary 
of  the  treasury,  resigning  in  1865,  and  collector  of  internal  revenue  for 
the  6th  district  of  New  York  until  1869.  He  then  returned  to  his  pro- 
fessional practice  and  became  judge  of  the  2d  District  Court  in  New 
York  to  fill  a  vacancy,  remaining  in  that  office  until  1874.  He  was 
an  accomplished  writer,  and  published  a  volume  of  "  Memoirs  "  which 
enjoyed  popiilarity. 


ILLMORE,  MILLARD,  thirteenth  president  of  the  United 
States  (born  in  Locke — now  Summerhill — township,  Cayuga 
county,  New  York,  February  7,  1800  ;  died  in  Buffalo,  March 
7,  1874),  was  descended  from  John  Fillmore,  a  mariner  of 
Ipswich,  Massachusetts,  who  emigrated  from  England  early  in  the 
eighteenth  century.  The  grandfather  of  the  future  president,  Na- 
thaniel F'illmore,  fought  in  the  French  and  Indian  war  and  the  Revo- 
lution, rising  to  the  rank  of  lieutenant.  His  son,  also  named  Nnthaniel, 
married  Phebe  Millard  about  the  close  of  the  last  century,  and  removed 
to  New  York  state,  building  a  log  cabin  in  the  wilderness.     lie  had 


iiisr(»i:v  OF   iiiK  isKNcii   and  hak  of  m:\v   \()i;k  H27 

tho  niist'ortimt'  to  lose  his  jjropcrty  in  coiisciiiicnct'  of  (l»*f«;ctivHn('ss  in 
its  title,  lie  then  took  i:5()  acres  in  the  "  niilitaiy  tiact  "  of  the  same 
county,  v(MT  i)oor  and  wholly  uniniiJioved  land. 

Millard  Fillmore  in  his  early  youth  worked  on  his  fathei's  farm, 
attending  school  in  the  winter  months.  At  the  age  of  fourteen  he  was 
apprenticied  to  a  wool-c^arder.  lie  worked  at  tiuit  trade  until  he  was 
nineteen  years  old.  Meantime  his  attendance  at  school  was  discon- 
tinued, but  he  made  diligent  use  of  such  books  as  he  could  obtain. 
Aspiring  to  become  a  lawyer,  he  entered  in  1S19  the  office  of  a  retired 
country  practitioner,  receiving  his  board  in  recompense  for  his  services, 
and  teaching  school  for  a  i)art  of  the  time.  After  four  years  of  study, 
although  he  had  not  finished  the  re(piisite  course,  he  was  admitted  to 
the  bar  of  the  Erie  county  Court  of  Common  Pleas  through  the  in- 
fluence of  friends  in  Buffalo.  Engaging  in  practice  at  Aurora,  he  won 
his  first  case,  receiving  a  fee  of  $4,  and  in  1827  and  1829,  respectively, 
was  admitted  an  attorney  and  a  counsellor  of  the  Superior  Court. 
Removing  to  Buffalo  in  1830,  he  soon  after  established  a  copartnership 
with  Nathan  K.  Hall,  in  Avhich  Solomon  G.  Haven  subsequently  joined. 
From  that  time  until  1847  Mr.  Fillmore's  firm  (Fillmore,  Hall  &  Haven) 
was  one  of  the  most  prominent  law  firms  in  western  New  York,  being 
i-etained  in  practically  every  important  case  arising  there.  He  w^as 
rated  as  a  lawyer  of  thorough  learning  and  sound  qualities,  and  his 
legal  career  and  reputation  formed  the  basis  for  all  the  political  dis- 
tinction that  he  attained. 

His  active  professional  practice  was  soon  interrupted  by  his  duties 
in  various  jHiblic  offices.  He  represented  Erie  county,  as  a  whig  mem- 
ber, in  the  legislature  from  1828  to  1831.  During  his  service  in  that 
body  he  was  the  author,  jointly  with  John  C  Spencer,  of  the  act  abol 
ishing  imprisonment  for  debt  (passed  in  1831).  He  was  elected  to  con- 
gress in  1832,  and  re-elected  yi  1836,  1838  and  1840.  He  was  chairman 
of  the  ways  and  means  committee  of  the  house  of  representatives  in 
the  27tli  congress,  and  was  the  principal  framer  of  the  tariff  of  1842- 
As  the  head  of  the  ways  and  means  committee  he  procured  the  pas- 
sage of  a  resolution  requiring  the  government  departments,  in  submit- 
ting estimates  of  expenses,  to  make  reference  in  all  cases  to  the  laws 
authorizing  them.  Declining  a  renomination,  he  retired  from  congress 
in  1843,  having  made  a  reputation  as  one  of  the  ablest  members  of  the 
legislative  branch  of  the  government,  in  1844  he  was  a  candidate  for 
the  whig  nomination  for  vice-president,  but  Avas  defeated  in  the  con- 
vention. In  the  fall  of  that  year  he  was  nominated  unanimously  by 
the  whigs  for  governor  of  New  York.  He  was  beaten  at  the  polls  by 
the  democratic  candidate,  Silas  AVright.  In  1847  was  elected  state 
comptroller,  and  in  1848  was  nominated  and  elected  vice-president  of 
the  United  States  on  the  ticket  with  General  Taylor.  President  Taylor 
died  on  July  9,  1850,  and  on  the  next  day  Mr.  Fillmore  qualified  as 
his  successor. 


828  HISTORY   OF  THE  BENCH   AND   BAR   OF  NEW   YORK 

The  administration  of  President  Fillmore  is  memorable  chiefly  for 
the  adoption  of  the  compromise  measures,  including  the  fugitive  slave 
law.  These  measures  were  not  originated  by  the  political  party  for 
which  the  administration  stood  ;  for  the  democrats  were  in  the  ascend- 
ency in  both  houses  of  congress.  But  the  president,  having  been 
assured  by  the  attorney-general  that  the  fugitive  slave  law  was  a  con- 
stitutional act,  signed  it.  In  this  he  had  the  unanimous  approval  of 
his  cabinet,  of  which  Daniel  Webster  was  the  head.  But  his  course 
proved  very  distasteful  to  the  people  of  the  north,  so  much  so  that  in 
the  whig  national  convention  of  1S52  he  received  only  twenty  votes 
from  the  free  states  for  the  presidential  nomination.  Aside  from  its 
policy  on  the  slavery  question,  the  Fillmore  administration  gave  gen- 
eral satisfaction  to  the  country.  Some  of  its  leading  events  were  the 
inauguration  of  the  system  of  cheap  postage,  the  laying  of  the  corner- 
stone of  the  capitol  extension,  the  negotiation  of  the  Perry  treaty,  by 
which  the  Japanese  ports  were  opened  to  our  trade,  and  a  strong  re- 
affinnation  of  the  time-honored  doctrine  of  non-intervention  in  the 
concerns  of  European  nations.  Mr.  Fillmore's  public  career  ended  with 
his  retirement  from  the  presidency  on  March  4,  1852,  and  although 
nominated  by  the  "  American  "  party  in  1856  as  its  presidential  can- 
didate, he  received  the  electoral  vote  of  only  one  state  (Maryland). 

In  the  closing  period  of  his  occupancy  of  the  executive  office, 
Mr.  Fillmore  contemplated  resuming  the  practice  of  the  law,  and,  his 
old  Buffalo  firm  having  been  dissolved,  he  arranged  to  open  a  law 
office  in  New  York  City  in  partnership  with  Judge  Henry  E.  Davies, 
of  the  Court  of  Appeals.  But  being  soon  afterward  sadly  bereaved 
by  the  death  of  his  wife,  he  changed  his  plans  and  retired  to  private 
life,  from  which  he  never  afterward  emerged. 


ISH,  HAMILTON  (born  in  New  York  City,  August  3,  1808  ; 
died  in  Garrison,  New  York,  September  7, 1893),  was  a  son  of 
Nicholas  Fish,  an  officer  of  the  Revolution  and  a  prominent 
^  public  man  and  citizen  of  New  York.'  He  was  graduated  in 
1827  from  Columbia  College,  and  in  1830  was  admitted  to  the  bar,  becom- 
ing soon  prominent  in  his  profession.  He  entered  actively  into  politics 
as  a  whig,  and  speedily  took  a  leading  place  in  the  party.  lie  was  elected 
to  congress  in  1842.  He  was  a  candidate  for  lieutenant-governor  in 
1846,  and  although  defeated  was  chosen  to  the  office  the  next  year  to 
fill  a  vacancy.  In  1848  he  was  elected  governor  over  John  A.  Dix  and 
Reuben  H.  Walworth,  receiving  a  majority  of  30,000.     In  1851  he  suc- 

>  Nicholas  Fish  was  born  in  New  York  City,  August  of  Alexander  Hamilton,  for  whom  his  son  was  named. 
28,  1758,  and  died  there  June  20,  1833.  He  studied  law  He  was  adjutant-general  of  the  State  of  New  York  for 
in  the  office  of  John  Morin  Scott.  He  was  in  active  many  years,  an  alderman  of  New  York  City,  and  super- 
service  throughout  the  Revolution,  and  distinguished  visor  of  revenue  under  Washington.  He  served  aa 
himself  by  gallantry  and  ability.  He  possessed  the  president  of  the  New  York  Society  of  the  Cincinnati, 
confidence  of  Washington,  and  was  an  intimate  friend 


lUY    OK     Till':    MKNCII    AM)    liAK 


NKW     VOKK 


:l>!) 


c^cdcd  DaiiicI  S.  Dickinson  iiiiii.'  I'liilcd  Slnl.'s  .s.mi:i(.'.  1 1.- iiliilatrd 
witii  (lif  n'piil)li(:iii  piiity  iiom  tiif  lime  of  ils  oi-iniii/iilioii.  lie  u:is 
(•()iisi)i('U()iis  (Iminj;-  tlic  prcsidciitiMl  coriipai';!!  of  isoo  in  proriiolin;^ 
tlic  election  of  iMr.  Linroln.  In  1S(;2  he  was  sent,  with  Bishop  A incis, 
as  a  commissioner  to  visit  tlie  I'nited  States  soldiers  coniined  at  Rich- 
mond and  elsewhere,  "to  ivlieve  their  necessities  and  provide  lor  their 
comfort,"  and  the  resnltof  this  mission  was  an  agreement,  wliicii  lasted 
thronghout  the  war,  for  exchanging-  prisoners.  Upon  the  organization 
by  PresitU-nt  Grant  of  his  iirst  cabinet  in 
1S»)1)  Mr.  Fish  was  appointetl  secretary  of 
state,  and  he  retained  that  office  until  the 
close  of  General  Grant's  presidency,  a 
l)eriod  of  eight  years. 

The  career  of  Hamilton  Fish  as  secre- 
tary of  state  was  marked  by  the  determi- 
nation of  a  number  of  very  grave  inter- 
national questions.     He  was  one  of  the 
commissioners  on  behalf  of  the   United 
States  in  the  negotiation  of  the  treaty  of 
Washington  of  1871 ;  he  settled  the  old 
northwestern  boundary  controversy  with 
Great  Britain  ;   he  adjusted  the   critical 
questions  between  the  United  States  and 
Spain  gi'owing  out  of  the  Cuban  insurrec- 
tion, and   it  was  at  his  instance  that  the  Geneva  tribunal  for  the 
settlement  of  the  •'  Alabama  claims "  incorporated  in  its  decisions  a 
provision  securing  this  country  against  claims  for  indirect  damages 
resulting  from  Fenian  raids  or  Cuban  filibustering  expeditions. 

Mr.  Fish's  preference  lT)r  public  life,  and  the  official  duties  that  he 
was  called  upon  to  discharge,  removed  him  from  the  formal  practice 
of  his  profession  at  a  comparatively  early  age.  He  was  at  one  time  in 
partnership  with  William  Beach  Lawrence.  As  a  lawyer  he  devoted 
himself  exclusively  to  office  practice,  acting  as  counsellor  rather  than 
advocate,  giving  his  attention  chiefly  to  real  estate,  in  which  he  was 
well  versed  and  of  which  he  was  a  large  holder.  For  several  years  he 
was  president  of  the  New  York  Historical  Society. 


ITHIAN,  FREEMAN  J.  (born  in  Erie,  Pennsylvania,  in  Octo- 
ber, 1822 ;  died  in  New  York  City,  August  4,  188-i),  studied 
law  in  the  office  of  Judge  Gardner  at  Lockport,  New  York, 
and  practiced  in  that  place  for  seven  years,  when  he  removed 
to  Buflalo,  forming  an  association  with  Eli  Cook.  While  residing  in 
Buffalo  he  served  as  district-attorney  of  Erie  county.  He  next  came 
to  New  York  City,  where  in  1868  he  was  appointed  justice  of  the 
Superior  Court,  a  position  which  he  filled  until  January,  1870.     After- 


330  HISTORY   OF  THE   BENCH   AND   BAR  OF   NEW   YORK 

ward  resuming  the  practice  of  his  profession,  in  partnership  with 
Lemuel  B.  Clark,  he  was  counsel  in  many  suits  involving  large 
amounts  of  money.  He  was  the  attorney  for  Daniel  Drew.  One  of 
his  celebrated  cases  was  that  of  the  New  England  Iron  Company 
against  the  Elevated  Railroad  Company,  to  recover  $6,000,000  for 
alleged  breach  of  contract.  The  trial  of  this  case  lasted  twenty-one 
days,  resulting  in  a  disagreement. 


ITZHUGH,  SAMUEL  H.  (born  at  the  Hiv-e,  Washington 
county,  Maryland,  February  22,  1796),  was  graduated  from 
Jefferson  College,  Pennsylvania,  in  June,  1816,  and  im- 
mediately afterward  entered  the  law  office  of  Judge  Howell, 
of  Canandaigua,  New  York.  He  was  called  to  the  bar  in  1817,  removed 
to  Wheeling,  Virginia,  and  engaged  there  in  successful  practice,  his 
reputation  extending  to  Pennsylvania.  He  removed  in  1831  to  Mount 
Morris,  Livingston  county.  New  York,  where  for  a  time  he  speculated 
in  land.  In  ISiO  he  was  appointed  associate-Judge  of  the  Livingston 
county  Common  Pleas  Court.  He  served  with  conspicuous  ability  on 
that  bench,  before  which  the  leading  lawyers  of  western  New  York 
constantly  appeared.  For  several  years  afterward  Judge  Fitzhugh 
practiced  at  the  bar,  and  controlled  a  large  and  remunerative  business. 


OLGER,  CHARLES  JAMES  (born  in  Nantucket,  Massachu- 
setts, April  16,  1818  ;  died  in  Geneva,  New  York,  September 
4,  1884),  was  graduated  from  Geneva  College  (now  Hobart 
College)  at  the  age  of  eighteen.  He  then  went  to  Canan- 
daigua and  engaged  in  the  study  of  the  profession  of  the  law.  In  1839 
he  was  admitted  to  the  bar  in  Albany,  after  which  he  practiced  for  a 
while  in  Lyons,  New  York.  In  1840  he  removed  to  Geneva.  He  was 
chosen  to  the  Common  Pleas  bench  of  Ontario  county  in  1843,  served 
also  as  master  and  examiner  in  chancery,  and  was  county  judge  from 
1852  to  1856.  In  1854  he  severed  his  connection  with  the  democratic 
party  and  joined  the  republican  organization.  For  thirteen  years  after 
his  retirement  as  judge  of  Ontario  county  he  diligently  and  success- 
fully practiced  his  profession,  making  a  reputation  as  one  of  the  best 
lawyers  of  the  state.  He  continued,  however,  to  take  a  decided 
interest  in  public  affairs,  serving  as  state  senator  from  1861  to  1869,  being 
chairman  of  the  judiciary  committee  of  the  senate  throughout  that 
period,  and  president  j9ro  tempore  for  four  years.  In  the  constitutional 
convention  of  1867  he  was  chairman  of  the  judiciary  committee.  From 
1869  to  1870  he  was  assistant-treasurer  of  the  United  States  in  Npw 
York  City. 

In  1871   Judge  Folger  was  elected  a   member  of  the  Court  of 


IIISTOKV    OK    I'lIK    in:.N(II    AM)    ItAK    (»K    NKW     \()1;K  :{:!! 

Appeals.  He  scM'vod  as  an  associatc-jiulirc  of  lliat  court  wifli  eminent 
;il)ility,  and  was  ])roinote(l  to  tlu;  plac«' ol'  cliier-jud^fe  in  INHO,  to  suc- 
ceed Saiifoi'd  Fi.  ('Imrch.  At  tlu^  fall  election  of  that  year  ha  was 
chosen  hy  the  people  for  a  term  of  fourteen  years.  But  the  fascinations 
of  hi^h  political  oilice  proved  irresistible  to  .Judge  Folger,  and  being 
offered  the  jjosition  of  secretary  of  the  treasury  by  Presid<'nt  Arthur 
in  1881,  he  resigneil  his  distinguished  judicial  station  to  accept  it. 
This  proved  to  be  the  initial  step  in  a  succession  of  momentous  and 
far-reaching  political  events.  Secretary  Folger  was  nominated  in  1882 
for  governor  of  New  York  by  the  rei)ublican  party,  but  it  was  felt  by 
the  public  that  the  methods  by  which  his  nomination  was  brought 
about  constituted  an  unwarrantable  interference  by  the  federal  admin- 
istration in  the  politics  of  the  state,  and  his  democratic  opponent, 
Grover  Cleveland,  was  elected  by  the  enormous  majority  of  1U2.()()U — a 
result  which  i)aved  the  way  for  the  national  defeat  of  the  republicans 
in  1884  and  for  the  long  public  career  of  Mr.  Cleveland. 

Judge  Folger  continued  at  the  head  of  the  treasury  department 
until  his  death. 


OOT,  SAMUEL  ALFRED  (born  in  Wethersfield,  Connecticut, 
December  19,  1790  ;  died  in  Geneva,  New  York,  May  11, 1878), 
was  graduated  from  Union  College  and  studied  law  in  Albany, 
where  his  brother,  Ebenezer  Foot,  was  an  eminent  practitioner. 
He  was  admitted  to  the  bar  in  1813,  and  sjjeedily  made  for  himself  a 
reputation  of  much  distinction.  He  become  district-attorney  of 
Albany  county  in  1819.  In  1825  he  removed  to  New  York  and  estab- 
lished a  coj)artnership  ^vith  Judge  William  Kent.  Subsequently  he 
was  associated  with  his  nephew,  Henry  E.  Davies,  and  still  later  with 
Honorable  William  E.  Curtis.  For  nearly  twenty  years  he  w^as  a 
prominent  figure  in  the  metropolis,  not  only  at  the  bar  but  as  a  citizen. 
In  1844  he  -went  to  reside  at  Geneva,  New  Y^ork,  and  three  years  later 
he  was  appointed  a  judge  of  the  Court  of  Appeals,  occupying  the 
position  until  1852,  During  the  administration  of  President  Tyler  he 
was  very  prominently  mentioned  for  a  place  on  the  bench  of  the 
United  States  Supreme  Court,  but  the  president  preferred  another  for 
that  office.  From  1855  to  1857  he  served  in  the  assembly.  He  was  a 
delegate  to  the  constitutional  convention  of  1867.  Originally  a 
democrat,  he  became  in  later  years  a  whig  and  then  a  republican.  In 
1876  he  wrote  a  reply  to  Judge  Jeremiah  S.  Black's  views  on  the  elect- 
oral commission  which  attracted  wide  attention.  He  wrote  and 
published  his  autobiography,  in  two  volumes  (privately  printed,  1872). 
As  a  lawyer  and  jurist  Judge  Foot  alwaj^s  occupied  a  command- 
ing piosition.  He  continued  in  active  practice  to  the  end  of  his  life,  and 
at  the  time  of  his  death  probably  was  the  oldest  practicing  member  of 
the  state  bar. 


332       HISTORY  OF  THE  BENCH  AND  BAR  OF  NEW  YORK 

iiJOSTER,  HENRY  ALLEN  (born  in  Hartford,  Connecticut, 
May  7,  1800  ;  died  in  Rome,  New  York,  May  12,  1889),  was 
educated  in  the  common  schools  of  Cazenovia,  New  York, 
studied  law  in  the  office  of  David  B.  Johnson,  and  was  admit- 
ted to  the  bar  in  1822.  He  took  an  interest  in  politics,  as  a  democrat, 
at  an  early  age,  was  a  member  of  the  state  senate  from  1831  to  1834 
and  from  1841  to  1844,  served  in  congress  from  1837  to  1839,  and  was 
appointed  senator  of  the  United  States  in  1844  as  successor  to  Silas 
Wright,  Junior,  continuing  in  that  office  until  1847.  In  1853  he  was 
appointed  by  President  Pierce  United  States  district-attorney  of 
northern  New  York,  but  he  declined.  He  was  twice  appointed  sur- 
rogate of  Oneida  county.  He  was  the  last  surviving  member  of  the 
*'  Albany  Regency,"  the  combination  of  democratic  leaders  which  for 
so  many  years  controlled  the  state.  In  1863  he  was  elected  Justice  of 
the  Supreme  Court  for  the  5th  judicial  district. 

Senator  Foster  was  a  man  of  much  talent,  as  a  lawyer,  a  judge  and 
a  politician  and  legislator,  but  possessed  a  domineering  nature  and 
manifested  at  times  a  somewhat  violent  temper.  He  continued  to 
practice  law  until  a  few  years  before  his  death. 


OSTER,  JACOB  POST  GIRAUD  (born  in  New  York  City, 
April  8,  1827  ;  died  there,  P'ebruary  26,  1886),  was  one  of  the 
most  prominent  practitioners  at  the  metropolitan  bar  in  the 
special  department  of  insurance  law.  He  was  graduated 
from  Columbia  College  in  1844  with  the  first  honors,  went  through  the 
Harvard  Law  School  and  was  admitted  to  the  bar  in  1848. 


[URMAN,  GABRIEL  (born  in  Brooklyn,  New  York,  January 
23,  1800  ;  died  there,  November  11,  1854),  was  a  Brooklyn 
lawyer  of  great  natural  ability,  whose  promising  career,  how- 
ever, was  marred  by  the  opium  habit.  He  became  a  justice 
of  the  Brooklyn  Municipal  Court  in  1827,  serving  for  three  years,  and 
from  1839  to  1842  was  a  member  of  the  New  York  state  senate.  He 
was  an  unsuccessful  candidate,  on  the  whig  ticket,  for  lieutenant-gov- 
ernor in  1842.  In  1824  he  published  "  Notes,  Geographical  and  His- 
torical, Relative  to  the  Town  of  Brooklyn."  He  made  elaborate  and 
valuable  researches  concerning  the  history  of  Long  Island  and  Brook- 
lyn, and  left  manuscripts  which  have  proved  highly  useful  to  subse- 
quent investigators.  

[ARDINER,  ADDISON  (born  in  Rindge,  New  Hampshire, 
March  19, 1797 ;  died  in  Rochester,  New  York,  June  5, 1883), 
one  of  the  most  distinguished  of  the  lawyers  of  western  New 
York,  was  taken  by  his  parents  when  quite  young  to  Manlius, 
New  York,  where  his  father  located.     The  father  became  a  friend  of 


iiisioKv  OF  iiiK  iii;n(ii  am>  kai:  ok  m,\v  v<»i:k  :{:{:{ 

Colonel  St'yniour,  tli«>  father  of  Tloialio  Seymour.  Yoim<;  (Jaidiiier 
icceived  liis  early  education  at  the  Manliun  Academy  and  afteiwaid 
entered  the  senior  class  of  I'nion  Colle,u-e,  \vher«^  he  graduated  in  IHI'J. 
After  his  graduation  he  returned  to  Manlius  and  began  the  study  of 
law.  ^Vhile  a  law  student  he  made  the  acquaintance  of  Thuilow 
\Ve(Hl,  wlio  was  at  that  time  ii  young  journalist  in  Manlius.  A  fri<'nd- 
shij)  sprang  up  between  the  two  young  men  which  lasted  all  theii- 
lives.  Mr.  Weed  in  subsequent  years  often  spoke  in  the  highest  terms 
of  Mr.  Gardiner's  abilities.  The  foundations  of  his  legal  learning  were 
laid  deep.  He  read  not  only  lilackstone,  but  Coke,  Bracton,  Lyttleton, 
Fleta,  and  others  of  the  old  sages  of  the  common  law.  From  these 
sources  he  learned  that  "root  of  the  matter"  wliich  so  distinguished 
him  in  after  life.  He  was  admitted  to  the  bar  in  1822,  and  at  once  moved 
to  Rochester,  where  he  was  chosen  justice  of  the  peace.  He  early  dis- 
tinguished himself  at  the  bar,  trying  cases  in  conjunction  with  or 
opposed  to  the  most  eminent  lawyers  of  western  New  York.  He  was 
appointed  district-attorney  for  Monroe  county  in  1825.  Soon  after  he 
began  practice  he  formed  a  partnership  with  Samuel  L.  Selden,  and 
later  Henry  R.  Selden  became  a  member  of  the  firm.  The  Selden 
brothers,  then  young,  became  among  the  most  distinguished  lawyers 
of  IS'ew  York,  both  rising  to  the  bench  of  the  Court  of  Appeals.  The 
firm  rapidly  made  its  way  to  the  front  and  soon  monopolized  most  of 
the  profitable  practice  in  Rochester. 

In  1829  Mr.  Gardiner  was  appointed  a  circuit  judge  for  what  was 
then  known  as  the  8tli  circuit,  which  was  composed  of  most  of  the  west- 
ern New  York  counties.  He  held  court  in  all  these  counties  for  nearly 
nine  years,  when  he  re-signed  his  seat  on  the  bench  and  resumed  prac- 
tice at  Rochester.  While  acting  as  circuit  judge  he  presided  at  the 
trial  of  the  People  vs.  Mather,  tried  in  the  Orleans  circuit  in  Novem- 
ber, 1820.  This  was  a  cause  celehre  in  western  New  York.  Mather 
had  been  indicted  as  one  of  the  abductors  of  AYilliam  Morgan.  The 
trial  occupied  ten  days  and  Mather  was  acquitted.  Owing  to  the  pop- 
ular excitement  and  hatred  against  the  prisoner  the  trial  of  the  case 
was  exceedingly  difficult,  but  Judge  Gardiner  gave  a  perfectly  fair  and 
impartial  hearing  to  both  the  state  and  the  prisoner.  Eminent  counsel 
were  engaged  on  both  sides  of  the  case,  among  them  John  C.  Spencer, 
special  attorney-general  for  the  state.  Mr.  Spencer  was  dissatisfied 
Avith  one  of  Judge  Gardiner's  rulings  and  took  the  point  by  appeal  to 
the  general  term  of  the  Supreme  Court,  which  sustained  the  ruling. 
The  case  on  appeal  is  reported  in  4  Wendell,  229,  William  L.  Marcy 
delivering  the  opinion. 

In  1844  Judge  Gardiner  was  elected  lieutenant-governor  of  the 
state  on  the  ticket  with  Silas  Alright.  In  1847  he  was  chosen  a  judge 
of  the  Court  of  Appeals,  resigning  as  lieutenant-governor.  He  was  thus 
an  original  member  of  the  newly-born  court  of  final  jurisdiction,  whose 
duty  it  was  to  decide  the  questions  arising  under  the  new  scheme  of 


334  HISTOEY    OF   THE   BENCH    AND   BAR   OF   NEW   YORK 

judicial  arrangement  and  to  apply  the  provisions  of  the  new  code  of 
procedure.  He  served  as  a  judge  of  the  Court  of  Appeals  until  1855, 
declining  a  renomination.  His  opinions  may  be  found  in  volumes  1  to 
13,  inclusive,  of  the  reports  of  the  Court  of  Appeals. 

After  he  retired  from  the  bench  he  continued  to  practice  in  Roches- 
ter until  his  death.  He  was  regarded  as  the  Nestor  of  the  bar  of  west- 
ern New  York,  and  lawyers  constantly  consulted  him  when  in  difficul- 
ties about  their  own  cases.  He  played  the  role  of  a  distinguished 
barrister  in  the  latter  years  of  his  life. 


ARVIN,  SAMUEL  B.  (born  in  Butternuts,  Otsego  county, 
New  York,  in  1811 ;  died  June  28,  1878),  studied  law  and 
was  admitted  to  the  bar  in  Norwich,  New  York,  and  in  18iO 
removed  to  Utica.  In  1850  he  was  elected  district-attorney 
of  Oneida  county,  and  in  1856  he  was  appointed  by  President  Pierce 
United  States  district-attorney  for  northern  New  York.  He  resigned 
after  two  years,  and,  going  to  New  York  City,  entered  the  firm  of 
Schaeffer,  Garvin  &  Dodge.  He  was  elected  judge  of  the  Superior 
Court  in  1862,  but  resigned  the  position  before  completing  his  term. 
Governor  Hoffman  appointed  him  district-attorney  of  New  York  City 
to  fill  a  vacancy,  and  he  was  afterward  elected  to  that  office  for  a  full 
term.  

ATES,  SETH  MERRILL  (born  in  Winfield,  Herkimer  coun- 
ty, New  York,  October  16, 1800 ;  died  in  Warsaw,  New  York, 
August  24,  1877),  was  admitted  to  the  bar  in  1827,  and  for 
fifteen  years  practiced  in  Le  Roy,  New  York,  removing 
from  there  to  Warsaw.  He  was  a  member  of  the  legislature  in  1832, 
and  of  congress  from  1839  to  1841.  While  in  the  legislature  he  took  a 
prominent  part  in  the  granting  of  the  charter  for  the  first  railway  in 
the  western  part  of  the  state.  He  was  successful  in  his  profession,  and 
was  also  widely  known  for  his  aggressive  anti-slavery  views.  During 
his  service  in  congress,  in  1843,  he  wrote  the  protest  of  the  whig  mem- 
bers of  congress  against  the  annexation  of  Texas,  the  authorship  of 
which  has  by  some  writers  been  mistakenly  attributed  to  John  Quincy 
Adams.   He  was  the  free-soil  candidate  for  lieutenant-governor  in  1848. 


|ERARD,  JAMES  WATSON  (born  in  New  York  City  in  1794  ; 
died  there,  February  7,  1874),  was  graduated  from  Columbia 
College  in  1811,  and  received  his  preparation  for  the  bar  in 
the  law  office  of  George  Gilffin.  lie  advanced  to  the  fore- 
most rank  of  the  ])rofession,  and  for  years  was  one  of  the  most 
prominent  men  of  New  York,  both  as  a  lawyer  and  as  an  active  and 
useful  citizen.    He  continued  in  the  practice  of  the  law  until  1869.     It 


IIIsroUY    <)!••     rilK    IJKNCII    ANI»    HAU    tiF    M;\\     V 


i:k 


:{:{.") 


\v:is  mainly  lo  his  clVorfs  tlial  llic  adoption  of  nnifonns  |'(.r  tlir  police 
lorct' was  due.  lie  was  an  cai'iit'sl  and  intclli^cnl  advocate  of  rncasm-cs 
of  ])ractical  i)hilantlir()i)y.  lie  ()ri<!,inat('d  the  system  of  honses  of 
refn^e  for  jnvenilo  delinquents,  ;ind  took  tlu^  ieadin<;  part  in  obtaining 
the  incorporation  of  snch  an  institution  in  New  Voik  in  1824.  lie 
manifested  a  keen  interest  in  public  education,  and  the  only  oflices  he 
could  be  i)revailed  upon  to  accept  during  his  life  were  those  of  school 
trustee  and  inspector.  

IFFORT),  GEORGE  (born  in  Dutchess  county.  New  York,  in 
1811  ;  died  in  Jersey  City  Heights,  July  2,  1883),  became  at 
an  early  age  a  student  of  the  law  at  New  Paltz,  Ulster  county. 
Devoting  himself  specially  to  patent  law,  he  built  up  a  repu- 
tation as  one  of  the  leading  patent  lawyers  of  the  day,  and  he  was  con- 
nected with  practically  all  tlie  important  litigations  on  patents  relating 
to  the  various  applications  of  electricity.  As  early  as  1856  he  was  the 
senior  counsel  of  Elias  Howe,  and  as  his  representative,  and  sub- 
sequently as  counsel  for  the  combination  composed  of  the  Singer, 
AVheeler  &  Wilson  and  the  Grover  &  Baker  sewing-machine  com- 
panies, he  successfully  sustained  the  monopoly  until  the  expiration  of 
the  i)ateuts.  In  the  meantime  he  acted  both  as  referee  to  settle  the 
internal  disputes  of  the  comi)anies  and  as  receiver  for  the  collection 
and  distribution  of  their  moneys. 


OULD,  WILLIAM  (born  in  Caldwell,  New  Jersey,  in  1814  ; 
died  in  JTlly,  1886),  was  a  noted  law-book  publisher  of 
New  York  City.  His  ancestry  lived  for  a  century  in  Cald- 
well, New  Jersey.  William  came  to  New  Y^ork  City  in 
1830  and  engaged  in  the  law-book  publishing  business  with  his  uncle, 
William  Gould.  Another  uncle  had  begun  law-book  publishing 
in  New  York  toward  the  end  of  the  eighteenth  century,  his  establish- 
ment being  the  second  of  its  kind  in  the  United  States.  (The  first  was 
in  Philadelphia.)  The  firm  started  by  the  uncle  and  nephew  in  1836 
became  William  &  A.  Gould  &  Co.,  and  then  Gould,  Banks  &  Co. 
Afteward  William  Gould  the  younger  associated  his  son  with  him  in 
the  firm  of  William  Gould  &  Son. 


RAHAM,  DAYID  (born  in  London,  England,  February  8, 
1808;  died  in  Nice,  France,  May  27,  1852),  was  a  son  of 
David  Graham,  an  early  nisi  prius  practitioner  of  note.' 
He  was  carefully  educated  by  his  father,  Avas  admitted  to  the 

'  David  Graliam,  the  elder,  was  born  in  the  north  of  braced  the  legal  profession,  and  he  became  very  promi- 

Ireland  in  1777,  and  was  educated  as  a   prcsbyterian  iient   at  the  nietropolitau    bur,  being   especially   dis- 

clergyman.      Ue  was   fast  becoming  recognized  as  a  tinguished  as  an  orator  and  for  the  masterly  construction 

brilliant  pulpit  orator,  when  he  was  obliged  to  emigrate  of   his   arguments.      He   was   also   an    accomplished 

to  America  for  political  reasons.    His  son   was  born  scholar.    Ue  died  in  New  York  City  in  1839. 
while  he  was  i)reparing  to  leave.    In  New  York  he  em- 


336  HISTORY    OK   THE   BENCH    AND   BAR   OF   NEW  YORK 

bar  upon  attaining  his  majority,  and  soon  began  to  rival  liis  father.  At 
the  age  of  twenty-four  he  was  appointed  one  of  a  committee  of  lawyers 
to  prepare  a  new  city  charter  that  was  intended  to  supersede  the  old 
royal  instrument  and  to  be  submitted  to  popular  vote.  At  the  age  of 
thirty-eight  he  was  selected  by  legislative  act,  with  Arphaxad  Loomis 
and  David  Dudley  Field,  a  commissioner  to  compile  a  code  of  criminal 
procedure — the  germ  of  the  code  now  in  statutory  use  in  the  state  of 
New  York.  He  also  early  compiled  and  published  a  law  book  of 
practice — "  Practice  of  the  Supreme  Court  of  the  State  of  New  York  " 
(1832), — which  for  two  decades  following  was  a  standard  authority. 
Although  he  was  a  master  of  civil  procedure,  his  taste,  like  that  of  the 
elder  Graham,  inclined  to  the  department  of  criminal  jurisprudence. 
Both  father  and  son  possessed  great  magnetism  of  manner,  adroitness 
and  other  qualities  which  peculiarly  adapted  them  for  criminal  practice. 
Early  in  his  career,  by  his  successful  defence  of  Ezra  "White  in  a 
sensational  murder  case,  he  attracted  attention.  Soon  after  he  de- 
fended Polly  Bodine,  accused  of  murder,  securing  at  the  first  trial  a 
disagreement  of  the  Jury,  at  the  second,  which  resulted  in  conviction, 
an  order  for  a  new  trial,  and  at  the  third  the  acquittal  of  his  client. 
These  successes  established  his  reputation,  and  ever  afterward  he  en- 
Joyed  a  wide  and  lucrative  practice.  His  defence  of  Bishop  Onder- 
donk  in  his  trial  before  the  house  of  bishops  in  1844  was  another  of 
his  celebrated  cases. 

To  a  certain  extent  be  was  interested  in  politics,  being  chosen 
alderman  and  corporation  counsel  (1842),  but  he  declined  all  proffered 
political  offices  that  would  have  withdrawn  him  from  his  profession. 
He  was  a  whig,  devoted  to  Webster  and  Clay,  and  rendered  able  and 
effective  service  in  the  Harrison  and  Tyler  campaign.  He  was  a  figure 
in  the  social  life  of  New  York,  and  was  a  highly  pleasing  speaker  on 
public  and  festive  occasions. 

Early  in  18.02  failing  health  compelled  him  to  abandon  his  pro- 
fession. He  sought  restoration  in  travel,  but  died  in  the  spring  of  the 
same  year. 

In  addition  to  his  important  work  on  practice,  he  published  "  New 
Trials  "  (1834,  subsequently  enlarged  by  his  son  and  Thomas  Watter- 
man,  and  republished  in  three  volumes  in  18.'56),  "  Courts  of  Law  and 
Equity  in  the  State  of  New  York  "  (1839),  and  an  annotated  edition  of 
Smith's  "  Chancery  Practice  "  (1842). 


RAHAM,  JAMES,  the  first  recorder  of  the  City  of  New  York, 
was  a  native  of  Scotland.  Coming  to  New  York,  he  became 
a  prominent  merchant  and  citizen.  His  will  is  on  file  in  the 
surrogate's  office,  dated  January  12,  1700-1.  He  was  ap- 
pointed by  Governor  Dongan  to  the  offi(?e  of  recorder,  serving,  with  the 
exception  of  two  years,  from  January  14,  1683,  to  October,  1700.    He 


IllsroitV    (»F    rilK    HKNCII    AND    IJAK    OK    NKW     VoKK  '.i'M 

was  also  spoakcr  of  the  assembly  for-  iiiiic  years  ](>'.)]  '.>'.>.  On  llic  diiy 
following-  his  apijoiiitment  as  ivcordcr  all  (lie  new  nia^Mst rates  weiit  in 
a  body  to  the  foit,  and,  beiii^  sworn  in  before  the  governor  and  council, 
returned  and  opened  coui't,  the  riM'order  "takinf;  his  seat  on  ye  ri<^ht 
hand  of  ye  mayor."  The  recorder  held  a  Recorder's  Couit,  in  which 
he  presided  as  the  cliief  otiicer.  "  As  it  sat  only  once  in  three  months, 
whereas  the  ISfayor's  (-ourt  sat  every  two  or  three  weeks,  it  was  deemed 
a  coui't  of  a  hii;her  <j:rade,  in  which,  at  first,  the  more  important  civil 
actions  were  brou<>lit  and  tlu>  principal  ciiminal  olTences  were  tried."  ' 


IRAHAM,  JOFLN  (born  in  New  York  City,  September  14, 
1S21 ;  died  there,  April  9,  1894),  was  the  second  son  of  David 
(Jraham  the  elder.  He  entered  Columbia  College  under  a 
sj)ecial  examination  at  eleven  years  of  age,  and  was  gradu- 
ated before  he  was  fifteen  as  valedictorian  of  his  class.  He  began  the 
study  of  law  in  his  father's  office,  but  the  latter  dying  in  1839  he  fin- 
ished his  studies  with  his  brother  David,  and  was  admitted  to  the  bar 
in  1842.  One  of  the  earliest  cases  of  note  in  which  John  Graham  ap- 
peared was  with  his  brother  in  the  defence  of  John  S.  Austen,  a  mem- 
ber of  the  Empire  club,  for  the  murder  of  Shea.  He  also  defended 
Donaldson.  His  first  great  case,  which  attracted  the  attention  of  the 
entire  country,  was  the  defence  of  Daniel  E.  Sickles  for  the  killing  of 
Francis  Barton  Key  in  Washington  on  February  27,  1859.  James  T. 
Brady,  Stanton  Bradley,  and  Peter  Cagger  were  the  other  lawyers  for 
Sickles.  Another  case  of  wide  interest  eleven  years  later  was  the  de- 
fence of  Daniel  McFarland  for  killing  A.  D.  Richardson  in  the  Tribune 
office,  November  25,  1869.  During  this  trial  he  said:  "This  is  the 
third  occasion  within  twelve  years  on  which,  although  a  single  man 
myself,  I  have  had  the  distinguished  honor  conferred  upon  me  of  up- 
holding and  defending  the  marriage  relation.  Within  that  period  the 
three  most  exciting  trials  have  occurred  in  this  country  which  have 
ever  occurred,  and  it  has  been  my  privilege  to  appear  in  ever\^  one  of 
them."  The  intervening  suit  was  the  Strong  divorce  case,  in  which 
Mr.  Graham  defended  Mrs.  Strong  and  established  her  innocence. 
Among  other  famous  suits  were  the  Arnold  divorce  case,  the  celebrated 
Hunt  divorce  case,  the  first  trial  of  Tweed,  the  defence  of  General  Alex- 
ander Slialer,  and  of  Jaehne,  the  boodle  aldennan.  He  occupied  the 
j)lace  of  prosecutor  in  a  capital  case  but  once.  He  argued  the  case  of 
Rogers,  as  state  counsel,  before  the  Court  of  Appeals,  carried  up  on  the 
question  whether  intoxication  is  an  absolution  for  the  crime  of  murder, 
and  secured  Rogers'  conviction  and  hanging.  He  said  afterward  :  "  I 
have  defended  many  a  man  for  nothing  to  clear  my  conscience  of  the 
burden  of  sending  Rogers  to  the  gallows." 

In  1850  he  was  a  candidate  for  district-attorney,  but  being  bitterly 

'  Judge  Charles  P.  Daly's  "  IIi^torical  Sketch  of  the  Judicial  Tribunals  of  New  York,"  pp.  33,  35. 


338  HISTORY    OF  THE  BENCH   AND   BAK   OF   NEW   TOEK 

opposed  by  the  elder  Bennett,  whom  he  attacked  on  the  street,  the 
campaign  resulted  in  his  defeat.  He  then  resolved  never  again  to  be  a 
candidate  for  public  office.  He  was  a  member  of  the  Law  Institute, 
but  refused  to  join  any  of  the  bar  associations  or  social  clubs  and  re- 
mained a  bachelor.  He  was  an  eloquent  speaker,  but  his  great  strength 
lay  in  the  logic  of  his  defences  and  his  boldness. 


|RAHAM,  JOHN  LORIMER  (born  in  London,  England. 
March  20,  1797 ;  died  in  Flushing,  Long  Island,  July  22, 
1876),  was  a  son  of  Doctor  John  A.  Graham,  who  early  in  the 
century  was  a  practitioner  in  the  criminal  courts.  He  began 
the  study  of  law  in  the  office  of  Judge  Tapping  Reeve,  of  Litchfield, 
Connecticut,  and  completed  it  under  John  Anthon  in  New  York,  being 
admitted  to  the  bar  in  1821.  He  was  prominent  in  the  department  of 
mercantile  law,  being  successively  at  the  head  of  the  conspicuous  firms 
of  Graham,  Noyes  &  Martin  and  Graham,  Wood  &  Powers.  He  added 
largely  to  the  fortune  left  him  by  his  father,  and  became  one  of  the 
wealthy  men  of  the  city.  In  1834  he  was  appointed  regent  of  the  state 
university,  and  in  1840  postmaster  of  New  York.  In  1861  he  accepted 
a  confidential  fjosition  in  the  treasury  department  at  Washington, 
which  he  held  for  several  years. 


I  RANGER,  FRANCIS  (born  in  Suffield,  Connecticut,  December 
1,  1792  ;  died  in  Canandaigua,  New  York,  August  28,  1868), 
was  a  son  of  Gideon  Granger  (q.  v.).  At  the  age  of  nineteen 
he  was  graduated  from  Yale  College,  and  preparing  himself 
for  the  law  he  entered  upon  its  practice  at  Canandaigua  in  1814,  soon 
gaining  a  position  of  prominence  at  the  Ontario  bar.  Identifying  him- 
self with  the  whig  party,  he  was  repeatedly  elected  to  the  state  legisla- 
ture, and  he  became  one  of  the  chief  leaders  of  the  whig  organization, 
being  twice  nominated  for  governor,  although  he  was  defeated  both 
times.  He  was  the  unsuccessful  whig  candidate  for  vice-president  of 
the  United  States  in  1836.  From  1839  to  1841  he  served  in  the  national 
house  of  representatives.  He  was  appointed  postmaster-general  in  the 
cabinet  of  President  W.  H.  Harrison,  resigning  that  office  after  the  re- 
construction of  the  cabinet  by  Tyler.  Offered  a  foreign  mission  by  the 
new  president,  he  declined  the  place,  and  soon  afterward  he  resumed 
his  service  in  congress,  remaining  in  that  body  till  the  close  of  the 
27th  congress.  He  was  one  of  the  most  popular  political  leaders 
of  his  times  and  was  on  terms  of  intimate  friendship  with  the  most 
distinguished  statesmen  of  that  period.  After  leaving  congress  he 
retired  to  private  life,  but  in  1861  he  accepted  an  appointment  from 
the  governor  of  New  York  as  a  member  of  the  peace  convention  held 
at  Washington  in  February  of  that  year. 


insi(»i;v  OK   iiii.;  hkncii   and  1!Ai:  ok  .m;\v   \i>\:K  'A'A'.) 

KAN(iKli,  GIDKOX  (horn  in  Siiincld,  Conncrtinit,  July  19, 
iTt')";  (lied  in  ('aniin(l;ii<,nia,  Ntnv  York,  l)«^c('inb('r  31,  1)S22), 
was  ft-raduatrd  from  Vale  College  in  1787,  was  admitted  to 
llie  bar,  and  for  neaily  fifteen  years  was  a  very  jjrominent 
lawyer  of  ('onnerticut.  He  was  a  leading  nu^nber  of  the  le<^islature  of 
that  state,  his  name  being  especially  identified  with  the  oiigination  of 
the  school  fund.  In  1801  he  w^as  a])i)ointed  postmaster-general  in  the 
cabinet  of  President  JefTerson,  a  jjosition  which  he  held  continuously 
for  thirteen  years.  Retiring  from  that  office  in  18U  he  settled  in  Can- 
andaigua,  New  York.  Although  he  did  not  resume  in  this  state  the 
active  practice  of  the  legal  profession,  he  was  pronnnent  in  its  public 
alfairs,  being  a  member  of  the  senate,  in  which  body  he  gave  valuable 
assistance  to  the  internal  improvement  jwlicy  of  his  fi-iend,  De  Witt 
Clinton.  He  was  a  political  writer,  publishing  "  Political  Essays " 
over  the  signatures  of  Algernon  Sydney  and  Epamminondas. 


KAY,  HIRAM  (born  in  Salem,  "Washington  county,  New 
York,  in  1801 ;  died  in  Elmira,  New  York,  May  G,  1890),  was 
of  Scotch-Irish  descent.  He  was  graduated  at  Union  College 
in  1821,  studied  law  in  the  office  of  Chief-Justice  Savage  at 
Salem,  New  York,  and  was  admitted  to  practice  in  the  Supreme  Court 
in  1823.  In  1825  he  formed  a  copartnershij)  with  Theodore  North, 
under  the  name  of  Nort+i  &  Gray,  at  Elmira,  then  the  village  of  New- 
town. In  1830  he  was  elected  to  the  state  senate,  and  after  leaving 
that  body  he  was  appointed  circuit  judge  and  vice-chancellor  of  the 
6tli  judicial  district.  He  was  elected  a  justice  of  the  Supreme  Court 
in  1847,  and  re-elected  for  a  term  of  eight  years  in  1851.  In  1869  he 
became  a  member  of  the  commission  of  appeals,  serving  from  January, 
1870,  until  the  termination  of  the  commission's  existence  in  1875.  In 
politics  Judge  Gray  w^as  a  democrat.  His  long  and  important  judicial 
career  was  marked  throughout  by  ability  and  high  integrity. 


|<^r^|REEN,  ROBERT  STOCKTON  (born  in  Elizabeth,  New 
R 'yM  'T<^i"sey,  March  25,  1831;  died  there,  May  7,  1895),  was 
;^^^^  descended  from  an  eminent  New  Jersey  family.'  He  was 
graduated  from  Princeton  College  in  1850  and  admitted  to 
the  bar  in  1853.  As  a  young  man  he  held  several  city  and  county 
offices.  In  1862  he  was  elected  surrogate  of  Union  county,  and  in 
1868  he  became  presiding  judge  of  the  Court  of  Common  Pleas 
and  tlie  County  Courts.    He  was  appointed  in  1873  by  Governor 

'  His  great-grandfather,  Reverend  Jacob  Green,  was  dent  of  Princeton  College  from  1812  to  1822,  and  ^\TOte 

elected  president  of  the  College  of  New  Jersey  in  175",  voluminously  on   religious   subjects.     The   father   of 

was  chairman  of  the  committee  that  drafted  the  New  Robert  S.  was  James  S.  Green,  a  New  Jersey  lawyer 

Jersey  constitution  in  the  provincial  congress  of  1775,  of  prominence, 
aiul  was  an  able  writer.    Jacob's  son,  Ashbtl,  was  presi- 


340  HISTOKY    OF   THE   BENCH   AND   BAK    OF   NE\y   YORK 

Parker  one  of  the  commissioners  to  suggest  amendments  to  the  state 
constitution.  In  1886  he  was  elected  governor  of  the  state.  Retiring 
from  that  office  he  received  the  appointment,  in  1890,  of  vice-chancellor 
for  a  term  of  seven  years ;  and  in  1894  he  was  made  judge  of  the 
Court  of  Errors  to  fill  the  vacancy  caused  by  the  death  of  William 
Walter  Phelps. 

Although  Mr.  Green's  public  career  was  confined  to  the  State  of 
New  Jersey,  of  which  he  remained  a  citizen  throughout  his  life,  he 
practiced  law  in  New  York,  being  a  member  of  the  widely  known 
firm  of  Vanderpoel,  Green  &  Cuming. 


RIFFIN,  EBENEZER  (born  in  Cherry  Valley,  New  York, 
July  29, 1789  ;  died  in  Rochester,  New  York),  attended  Union 
College,  but  did  not  graduate.  He  was  admitted  to  the  bar 
in  1811,  and  practiced  for  eight  years  at  Clinton,  New  York, 
and  then  at  Utica  until  1825,  when  he  removed  to  the  City  of  New 
York.  In  1842  he  went  to  Rochester,  where  he  spent  the  rest  of  his 
life.  He  was  one  of  the  best  known  advocates  of  his  day,  being  con- 
nected with  the  famous  Morgan  abduction  case,  in  which  he  defended 
Mather,  charged  with  conspiracy,  obtaining  his  acquittal. 


ROVER,  MARTIN  (born  October  20,  1812 ;  died  in  Angelica, 
New  York,  August  23,  1875),  was  a  law  student  in  the  office 
of  Honorable  AVilliam  G.  Angel,  whose  partner  he  afterward 
became  in  the  firm  of  Angel  &  Grover.  Like  his  preceptor, 
he  struggled  against  great  disadvantages  in  his  youth,  but  after  his 
admission  to  the  bar  he  made  his  way  steadily  to  a  position  of  the 
first  importance.  In  1844  he  was  elected  to  congress.  He  was  the  free- 
soil  candidate  for  attorney-general  in  1853  but  was  defeated.  He  was 
elected  justice  of  the  Supreme  Court  in  1857  to  fill  a  vacancy,  and  was 
re-elected  for  a  full  term  in  1859.  At  the  expiration  of  his  service  on 
that  bench  (1867)  he  was  chosen  associate- judge  of  the  Court  of  Ap- 
peals, and  in  1870  he  was  again  elected  under  the  amended  judiciary 
article  of  the  constitution  of  1867. 

Martin  Grover  enjoys  a  firmly  established  fame  as  one  of  the 
ablest  judges  of  the  State  of  New  York.  He  was  thoroughly  grounded 
in  the  principles  of  the  law  and  prompt  and  discerning  in  applying 
them. 

ACKETT,  JOHN  KETELTAS  (born  in  Utica,  New  York, 
February  13,  1821 ;  died  in  New  York  City,  December  26, 
1879),  was  a  son  of  James  Henry  and  Katherine  Hackett, 
both  of  whom  were  prominent  figures  in  the  theatrical  pro- 
fession of  their  generation.  He  was  graduated  from  the  University  of 
the  City  of  New  York  in  1837,  and  after  studying  for  the  legal  profes- 


IIIS'lOKY    (»K     I' 


i?i;n('ii   and  uai:  ok  nkw  vokk 


:mi 


slon  ill  lltica  was  adiiiiltcd  to  the  bar  in  Albany.  Ik'  removed  to  Cali- 
loriiia  in  IS^O  and  lived  there  for  seven  years,  durin;^  whieli  he  serv(;d 
the  city  of  San  Francisco  as  corporation  connsel.  I'pon  his  return  to 
tliis  state  he  en<j;aged  in  i)ractice  in  New  York  City,  of  whicli  he  be- 
came cor])oration  connsel  in  18(53  and  recorder  in  180(5,  filling  the  latter 
office  with  ability  nntil  his  death. 


ALE,  K()iM^:RT  SAFPORD  (born  in  Chelsea,  Vermont,  Sep- 
tt'niber  24,  1822  ;  died  in  Elizabethtown,  Essex  county.  New 
York,  December  14,  1881),  was  graduated  in  1842  from  the 
I'niversitj^  of  Vermont  and  Avas  admitted  to  the  bar  in  1847 
at  Klizabcthtown.  He  was  a  conspicuous  lawyer  and  judge  of  his  part 
of  the  state,  being  surrogate  and  judge  of  Essex  county  for  eight  years 
from  185(5.  He  was  also  (1859-81)  a  regent  of  the  University  of  the 
State  of  New  York.  He  served  two  terms  in  congress  (18G5-67  and 
1873-75).  He  was  employed  by  the  national  government  in  important 
cases,  being  special  counsel  to  defend  abandoned  and  captured  property 
claims  (1868-70)  and  government  agent  and  counsel  before  the  Ameri- 
can and  British  mixed  commission  (1871-73). 


ALL,  JOHN  PRESCOTT  (born  in  Pomfret,  Connecticut,  July 
9, 1796 ;  died  in  Newport,  Rhode  Island,  September  29, 1862), 
was  admitted  to  the  bar  soon  after  his  graduation  from  Yale 
College  (1817).  He  engaged  in  practice  in  New  York  City 
and  was  noted  for  his  versatile  abilities,  especially  for  his  eloquence 
as  an  advocate  and  public  speaker.  He  published  two  volumes  of 
"  Reports  of  Cases  in  the  Superior  Court  of  the  City  of  New  York, 
1828-29."  In  politics  he  was  a  Avhig,  and  he  served  as  United  States 
district-attorney  in  New  York  under  Tyler  and  again  under  Fillmore. 


ALL,  NATHAN  KELSEY  (born  in  Marcellus,  Onondaga 
county,  New^  York,  March  10,  1810  ;  died  in  Buffalo,  March 
2.  1874),  was  of  very  humble  birth.  His  father  was  a  shoe- 
maker, and  Nathan,  as  a  lad,  worked  at  that  trade.  He  en- 
tered the  law  office  of  Millard  Fillmore  at  Aurora,  l^ew  York,  at  the 
age  of  eighteen,  and  four  years  later,  having  been  admitted  to  the  bar, 
he  became  Mr.  Fillmore's  partner  in  Buffalo.  Later  he  was  associated 
in  the  same  firm  with  Solomon  G.  Haven.  He  held  local  offices  in  Buf- 
falo, and  was  appointed  by  Governor  Seward  master  in  chancery  in 
1839  and  judge  of  the  Court  of  Common  Pleas  in  1841.  He  served  a 
term  in  the  assembly  (1845)  and  in  congress  (1847  to  1849),  and  then 
returned  to  his  professional  practice.  In  1850  he  became  postmaster- 
general  in  President  Fillmore's  cabinet,  and  from  1852  until  his  death 
he  was  United  States  judge  of  the  District  Court  of  northern  New  York. 


342  HISTORY   OF   THE   BEXCH  AXD   BAR   OF  NEW   YORK 

ALL,  WILLIS  (born  in  Granville,  New  York,  April  1,  ISOl ; 
died  in  New  York  City,  July  14,  1868),  was  graduated  at 
Yale  College  in  182-4,  and  after  his  admission  to  the  bar  in 
1827  went  to  Mobile,  Alabama,  where  he  practiced  law  with 
success.  In  1831  he  returned  to  New  York,  and  for  a  number  of  years 
he  was  active  at  the  metropolitan  bar.  He  was  chosen  to  the  assembly 
in  1837  and  1842,  and  was  attorney-general  of  the  state  in  1838-39.  In 
1848  he  retired.  He  was  connected  with  a  law  school  at  Saratoga  as  a 
lecturer. 

AMILTON,  ALEXANDER  (born  in  Nevis,  an  island  of  the 
West  Indies,  January  11,  1757  ;  died  in  New  York  City,  July 
12,  1804),  was,  according  to  accepted  tradition,  the  son  of  a 
Scotch  merchant  and  a  French  Huguenot  lady.  Although 
the  mystery  of  his  birth  has  never  been  cleared  up,  the  burden  of  evi- 
dence seems  to  support  this  tradition  and  not  the  story,  which  has 
found  favor  in  some  quarters,  that  his  mother  was  an  Englishwoman 
named  Lytton.  That  he  had  French  blood  in  his  veins  can  hardly 
admit  of  doubt.  The  method  of  his  writing  when  he  became  a  man  and 
his  style  in  composition,  which  shows  a  French  clarity,  bespeak  this. 
In  the  case  of  Coulon  vs.  Bowne,  reported  in  1  Caines'  Term  Reports, 
283,  he  made  an  argument  on  a  matter  involving 
the  meaning  of  the  word  "  since,"  which  was  used 
in  an  insurance  policy.  His  client  was  a  French- 
man and  had  used  an  equivalent  French  word. 
Hamilton  showed  to  the  court  how  the  sentence 
would  read  in  French,  and  did  it  in  a  style  that 
conclusively  demonstrated  his  innate  familiarity 
with  French.  When  he  was  an  aide  on  Washing- 
ton's staff,  he  w^as  used  by  Washington  as  a  me- 
dium to  communicate  orders  to  the  commanders 
of  the  French  allies.  Besides,  Hamilton  himself 
often  declared  that  his  father  was  Scotch  and  his 
mother  was  French.  Among  his  contemporaries 
the  doubtful  story  that  he  was  of  illegitimate  birth 
appears  to  have  received  considerable  acceptation. 
John  Adams,  in  a  letter  to  Jefferson  in  1818,  styled 
him  the  "  bastard  son  of  a  Scotch  pedler."  But, 
notoriously,  Hamilton  and  Adams  were  not  on  the 
most  friendly  terms  during  the  latter  years  of 
Hamilton's  life.  So  far  as  the  evidence  goes,  the  presumption  is  that 
his  mother's  maiden  name  was  Faucette  and  that  she  was  married  to 
his  father. 

His  mother  died  while  he  was  a  child,  and  his  father  soon  there- 
after became  bankrupt.  His  mother's  relatives  then  took  charge  of 
him,  and  when  about  twelve  years  of  age  was  placed  by  them  in  a 


HISTf)KY    OK   TIIK    HKNCII    AM)    IJAII    OK    Ni:W    V()|;K 


:m:{ 


countin^-roojii  as  clerk  to  a  Nicholas  Cnis<'r  in  Santa  CJniz.  While 
iservin^  in  that  cai)acity  lie  displayed  extraordinary  ability  for  one  so 
youiiii;.  He  appears  to  have  nianai::ed  all  the  alVairs  of  his  enii)loyer 
duiiiii?  the  hitter's  temporary  absence.  At  this  time  he  wrote  letteis, 
still  extant,  which  show  extreme  jjrecocity.  In  one  of  them,a(hlress<'d 
to  an  Edward  Stevens,  who  was  a  student  in  King's  College,  New  York 
City,  he  wrote  :  "  I  contemn  the  grovelling  condition  of  a  clerk,  or  the 
like,  to  which  my  fortune  condemns  me,  and  would  willingly  risk  my 
life,  though  not  my  character,  to  exalt  my  station.  1  am  c(mli(lent, 
Ned,  that  my  youth  excludes  me  from  any  hopes  of  immediate  i)refer- 
ment,  nor  do  I  desire  it,  but  I  mean  to  prej)are  the  way  for  futurity." 
While  he  was  acting  as  clerk  he  still  continued  to  study,  and  laid  the 
foundations  for  a  sound  literary  culture,  reading  most  of  the  standard 
authors,  both  English  and  classic.  Plutarch  was  apparently  liis  favor- 
ite author  at  this  time.  While  he  was  in  Santa  Cruz  there  was  a  pres- 
by  terian  minister  there  named  Knox.  He  became  acquainted  with  young 
Hamilton,  and,  not- 
ing his  extraordi-  ^  "^i^^^BBM^'^  ®i'?"f^S\^^^ 
nary    p  o  w  e  r  s    of    '        *^  T  iTinTIIBilii V  ^i^s^.  'SjV'.^;  s?.  o^  .  -. 

mind,  used  his  influ- 
ence among  the 
boy's  relatives  to 
have  him  sent  to  col- 
lege. Reverend  Mr. 
Knox  succeeded  in 
raising  sufficient 
funds  to  send  him 
to  the  American  col- 
onies, and  in  Octo- 
ber, 1772,  he  arrived  ""' "'"''""'  "^""  '"^ '  Kt—r .s.  ►.. 
in  Boston,  whence  he  went  to  New  York.  There  he  presented  his 
letters  of  introduction.  At  that  time  there  was  in  Elizabethtown,  New 
Jersey,  a  Latin  school  of  quite  considerable  reputation,  and  Hamilton 
matriculated  in  it.  It  may  be  remarked  as  a  curious  coincidence  that 
Hamilton's  rival  in  after  life,  Aaron  Burr,  Avas  then  living  with  his 
uncle  in  the  same  town.  After  a  year's  study  he  was  prepared  to  enter 
college.  He  first  tried  Princeton,  but  did  not  enter  because  he  wanted 
to  get  his  degree  as  rapidlj-  as  possible,  and  the  rules  of  that  institution 
required  him  to  go  through  the  routine  of  freshman,  sophomore,  junior, 
and  senior.  In  1778  he  entered  King's  College,  now  Columbia,  and 
prosecuted  his  studies  wdth  ardor. 

Meantime  the  events  of  the  coming  Revolution  were  hurrying  for- 
ward. The  dominant  sentiment  of  New  Y'ork  City  was  decidedly  tory. 
The  legislative  assembly  were  all  friends  and  staunch  adherents  of 
King  George.  But  among  the  masses  there  was  a  slumbering  feeling 
against  monarchy.     The  assembly  had  been  importuned  to  send  repre- 


344 


HISTORY   OF   THE   BENCH   A^B   BAR  OF   NEAV   YORK 


sentatives  to  the  first  continental  congress.  They  hesitated.  A  great 
meeting  was  held  just  outside  New  York  City  to  urge  on  the  assembly 
the  necessity  of  falling  in  line  with  the  other  colonies  in  their  opposi- 
tion to  the  mother-country.  Hamilton  was  present  at  this  meeting  and 
made  a  speech.  He  carried  the  day.  Resolutions  were  adopted  favor- 
ing the  attitude  Massachusetts  had  taken  on  the  Boston  port  bill,  and 
calling  on  the  assembly  to  co-operate  with  the  other  colonies  in  their 
attitude  on  that  measure.  Hamilton  also  wrote  pamphlets  and  articles 
in  defence  of  American  rights,  which  attracted  wide  attention.  It  is 
beyond  question  that  young  Hamilton  contributed  much  of  the  force 
which  sent  New  York  into  the  continental  congress. 

Before  the  battle  of  Lexington  was  fought  he  began  to  study  mil- 
itary tactics.    Early  in  1776  the  New  York  convention  ordered  that  a 


IIOISE,    WIIEHE    HAMILTON    DIED. 


military  company  be  recruited.  Hamilton  applied  for  the  command 
and  was  made  captain  on  March  14,  1776,  when  nineteen  years  old. 
With  his  company  he  fought  in  the  battle  of  Long  Island,  accompanied 
the  main  army  in  its  retreat  from  New  York  City,  and  took  part  in  the 
battle  of  White  Plains.  He  also,  witli  his  company,  was  with  the  main 
army  of  Washington  in  its  retreat  across  New  Jersey,  and  was  at  the 
battle  of  Trenton.  On  March  1,  1777,  he  Avas  appointed  one  of  Wasli- 
ington's  aides,  with  the  rank  of  lieutenant-colonel.  In  this  capacity 
he  was  employed  by  the  commander-in-chief  in  the  most  important  of 
military  trusts.  He  attended  to  all  of  Washington's  correspondence, 
and  all  the  military  orders  went  through  him.    The  clear  and  forcible 


IIISTOKY    OK     IIIK    HK.NCII    A.M»    ItAU    ( »F    N  KW     V(>1;K  AA') 

Kii^lisli  in  which  those  <mler.s  were  couclied  was  due  fo  Hamilton. 
One  i)ieoe  of  coiisj)i(Mioiis  service  which  lie  rendei-ed  while  aide  was  of 
a  (liploniatic  rather  than  a  niililary  nature.  lie  was  sent  to  obtain 
Iroops  from  (rates  after  the  Jiurgoyne  campaign,  and  succeeded. 
\Vhile  he  was  on  this  mission  at  Albany  h'^  lirst  met  his  future  wife, 
Elizabeth  Schuyler,  whom  he  married  in  1780  wiiile  he  was  still  on 
Washington's  staff.  As  a  stalf-oflicer  he  attended  Washington  in  all 
his  battles  and  campaigns.  One  of  tlie  incidents  of  his  staff  life  was 
his  presence  witli  Washington  at  West  Point  at  the  time  of  Arnold's 
flight.  He  has  left  a  graphic  picture  of  Mrs.  Arnold's  despair,  which 
he  witnessed  in  the  l^everley  Robinson  house  opposite  West  Point. 
In  1781  he  resigned  his  commission  in  consequence  of  a  reproof 
received  from  General  Washington  ;  bnt  shortly  afterward  he  received 
command  of  a  New  York  battalion  of  infantry,  and  at  the  battle  of 
Yorktown  he  charged  the  redoubts  at  the  head  of  his  troops.  He  then 
retui'ued  to  New  York  City  and  prosecuted  his  law  studies. 

lie  was  admitted  to  the  bar  in  1TS2.  While  a  law  student  he  was 
appointed  continental  receiver  of  taxes  for  New  York,  l)ut  resigned  to 
take  a  seat  in  the  continental  congress,  wherein  he  served  in  17S2-83. 
As  a  member  of  congress  he  was  active  in  having  peace  restored  with 
England  and  having  the  resulting  treaty  ratified.  From  1783  to  1787 
he  was  busy  practicing  law  in  New  York  City,  but  in  addition  to  his 
extensive  practice  he  occupied  himself  with  schemes  to  replace  the  mori- 
bund continental  congress.  He  wrote  pamphlets,  letters,  and  argu- 
ments in  favor  of  a  "  more  perfect  union."  He  was  chosen  one  of  the 
New  York  delegates  to  the  constitutional  convention  held  in  Philadel- 
phia, and  the  part  he  took  in  that  body  belongs  to  the  most  important 
political  history  of  the  country.  Hamilton  bears  the  same  relation  to 
the  present  federal  constitution  that  Jefferson  does  to  the  declaration 
of  independence.  No  matter  how  the  details  of  the  scheme  he  proposed 
were  changed  by  the  convention,  the  salient  features  were  retained,  and 
are  to-day  regarded  as  the  corner-stone  in  the  construction  of  that 
instrument. 

Hamilton  retired  to  New  York  City  after  the  labors  of  the  convention 
were  ended  and  wi-ote  the  remarkable  series  of  articles  in  the  Federal- 
ist in  behalf  of  the  adoption  of  the  constitution.  These  articles  were 
spread  all  through  the  thirteen  colonies  and  exerted  a  great  influence. 
He  was  made  by  Washington  the  first  secretar}^  of  the  United  States 
treasury,  and  as  such  was  the  author  of  the  funding  system,  the 
founder  of  the  United  States  bank,  and  the  moving  spirit  in  favor  of 
a  central  currency.  As  secretary  he  sent  to  congress  a  "  Report  on  the 
Public  Credit,"  in  which  he  discussed  every  phase  of  the  federal  finan- 
cial system,  and  which  conclusively  proves  him  to  have  been  one  of  the 
very  greatest  of  our  public  financiers.  In  January,  1795,  he  resigned 
from  the  cabinet  and  resumed  the  practice  of  the  law  in  New  York 
City.     While  practicing  he  still  continued  in  touch  with  politics,  and 


346  HISTORY   OF  THE   BEXCH   AND   BAR   OF  NEW    YORK 

by  his  advice  the  "  Federal  party  "  was  formed.  To  him  is  attributed 
the  autliorship  of  Washington's  "  Farewell  Address."  In  1798,  during 
the  troubles  witli  France,  he  was  made  inspector-general  of  the  arm 3', 
with  the  rank  of  major-general.  In  1800  he  was  chosen  president  of 
the  Cincinnati  Society.  When  Jefferson  and  Burr  had  their  tie  vote 
in  the  electoral  college,  Hamilton  used  his  inlluence  with  the  represent- 
atives to  have  Jefferson  chosen,  which  was  done.  This  was  the  begin- 
ning of  his  fatal  quarrel  with  Burr.  Hamilton  later  prevented  Burr 
from  getting  the  support  of  the  federalists  for  governor.  It  is  not 
very  profitable  to  inquire  as  to  the  right  and  the  wrong  of  the  Hamil- 
ton-Burr difficulty.  Both  were  great  men.  Both  were  as  ambitious  as 
Caesar.  To  lay  the  whole  blame  on  Burr  is  not  warranted  by  the  facts. 
Hamilton  was  a  fighting  man,  and  his  son  had  been  killed  in  a  duel  a 
short  time  before  his  own  death.  The  undisputed  fact  is  that  Hamilton, 
in  the  last  four  years  of  his  life,  had  used  the  most  violent  language 
against  Burr — such  language  as  at  that  time  warranted  a  challenge. 
The  challenge  was  forthcoming  and  Hamilton  accepted  it.  The  parties 
met  at  Weehawken  on  July  11,  1804,  and  Hamilton  was  mortally 
wounded,  dying  the  next  day.  He  was  thus  cut  off  in  his  prime,  being 
but  forty-seven  years  old. 

What  he  might  have  become  as  a  public  man  and  statesman  had 
he  lived  longer  is  a  matter  of  speculation,  but  it  can  be  assumed  as  a 
matter  of  absolute  certainty  that  he  would  have  reached  the  pinnacle 
of  human  greatness  as  a  lawyer  had  he  continued  to  practice.  The  first 
five  volumes  of  the  New  York  Reports  establish  this.  Although  his 
arguments  are  meagrely  reported,  there  is  enough  in  them  to  show  his 
wonderful  grasp  of  principles.  Chancellor  Kent,  before  whom  Hamil- 
ton argued  cases  while  he  was  a  Judge  of  the  Supreme  Court,  enter- 
tained the  most  exalted  opinion  of  him.  In  an  address  made  before  the 
New  York  Law  Association  in  1836,  the  ex-chancellor  thus  spoke : 

Among  his  brethren  Hamilton  was  indisputably  pre-eminent.  He  at  once  rose 
to  the  loftiest  professional  eminence  by  his  profound  penetration,  his  power  of  analy- 
sis, the  comprehensiTe  grasp  and  strength  of  his  understanding,  and  the  frank- 
ness, firmness,  and  integrity  of  his  character.  In  reference  to  his  associates  we 
may  say  of  him,  as  was  said  of  Papinian,  onmes  longo  j^ost  se  intervallo  reliquerit. 
I  have  always  regarded  Mr.  Hamilton's  argument  near  the  close  of  his  life,  in  the 
celebrated  libel  case  of  Cross  well,  as  his  greatest  forensic  effort.  The  subject,  of 
grave  and  lofty  import,  related  to  the  liberty  of  the  press,  and  to  the  right  of  a  jury 
in  a  criminal  case  to  determine  the  law  as  well  as  the  fact.  He  never  in  any  other 
of  his  cases  at  the  bar  commanded  higher  reverence  for  his  principles  or  equal 
admiration  of  the  power  and  pathos  of  his  eloquence.  I  also  heard  him  m  our 
mutual  youth,  in  January,  1785,  when  for  the  first  time  I  attended  a  term  of  the 
New  York  Supreme  Court,  and  .saw  and  heard  then,  in  one  interesting  suit  brought 
to  a  hearing,  how  he  commanded  great  attention  by  his  powers  of  argument  and  oi*a- 
tory.  Hamilton  was  then  at  the  age  of  twenty-seven.  He  rose  with  firmness  and  dig- 
nity, and  during  two  hours  was  fluent,  argumentative,  ardent,  and  accompanied  with 
great  emphasis  of  manner  and  expression.  His  speech  was  marked  for  a  searching 
analysis  of  the  case.     He  was  resisting  a  motion  for  a  new  trial  made  as  against 


lllsroUY    OK   'nil'.    HKNCII    AM)    liAK    oK    M.W    v<ii:k  'M7 

ovidonco  where  Hamilton  at  iiini  ]>ri'iis  had  obtained  a  verdict  rather  l)y  the  foriro 
of  liis  character  and  the  cliarui  of  }iis  ehxinence  than  by  preponderancii  of  jiroof. 

Aiiiiiii,  ill  liis  CoiiiiiKMitaiics,  ('IkiiiccIIoi-  Kfiit  thus  spcMks  of 
llaiiiillon: 

If  we  take  the  Reports  of  New  York  in  chronological  order,  we  shall  find  that 
the  liist  live  volumes  occupy  the  period  wlien  Alexander  Hamilton  was  a  leadinfj 
advocate  at  our  bar.  That  accomplished  lawyer  (for  it  is  in  that  character  only  that 
I  am  now  permitted  to  refer  to  him)  showed,  by  his  precepts  and  practice,  tlie  value 
to  be  placed  on  the  decisions  of  Lord  Mansfield.  He  was  well  acquainted  with  the 
productions  of  Yalin  and  Emerigon;  and  if  he  be  not  truly  one  of  the  founders  of 
the  commercial  law  of  this  state,  he  may  at  least  be  considei-ed  as  among  the  earliest 
of  those  jui'ists  who  recommended  those  autlioi*s  to  the  notice  of  the  profession  and 
rendered  tlie  study  and  citation  of  them  popular  and  familiar.  His  arguments  on 
commercial  as  well  as  on  other  questions  were  remarkable  for  freedom  and  energy; 
and  he  was  eminently  distinguished  for  completely  exhausting  every  subject  which 
he  discussed,  and  lea\-ing  no  argument  or  objection  on  the  advei-se  side  unnoticed 
and  unanswered.  He  traced  doctrines  to  their  source,  or  probed  them  to  their 
foundations,  and  at  the  same  time  paid  the  highest  deference  and  respect  to  sound 
authority.  The  reported  cases  do  no  kind  of  justice  to  his  close  and  accurate  logic, 
to  his  powerful  and  comprehensive  intellect,  to  the  extent  of  his  knowledge,  or  the 
eloquence  of  his  illustrations.  We  may  truly  apply  to  the  efforts  of  his  mind  the 
remarks  of  Mr.  Justice  Buller,  in  reference  to  the  judicial  opinions  of  another  kin- 
dred genius,  that  "principles  were  stated,  reasoned  upon,  enlarged,  and  explained 
until  those  who  heard  him  were  lost  in  admiration  at  the  strength  and  stretch  of 
the  human  understanding." 

And  still  again,  in  liis  Commentaries,  Kent  says : 

A  very  able  discussion  of  the  assumed  right  to  confiscate  debts  [the  claim  of  a 
right  to  confiscate  debts,  contracted  by  individuals  in  time  of  peace  and  which 
remain  due  to  subjects  of  the  enemy  at  the  declaration  of  war]  was  made  by  Mr. 
Hamilton  in  the  numbers  of  CamiUus,  published  in  1795.  He  examined  the  claim 
to  confiscate  private  debts,  or  private  proj^erty  in  banks  or  in  public  funds,  on  the 
grounds  of  reason  and  principle,  on  those  of  policy  and  expediency,  on  the  opinion 
of  jurists,  on  usage,  and  on  conventional  law;  and  his  argument  against  the  justice 
and  policy  of  the  claim  was  exceedingly  powerful.  He  contended  it  to  be  against 
good  faith  for  a  government  to  lay  its  hands  on  private  property,  acquired  by  the 
permission  or  upon  the  invitation  of  the  government,  and  under  a  necessarily  im- 
plied promise  of  protection  and  security. 

If  any  f  nrther  evidence  is  needed  to  support  the  claim  tliat  Hamilton 
was  the  foremost  practicing  lawyer  of  his  time,  the  case  of  Rutgers  vs. 
AVaddington,  tried  in  the  Mayor's  Court  of  the  City  of  Xew  York  in  1784 
before  Mayor  Duane  when  he  was  onl}^  twenty-seven  years  old  and  had 
■  been  at  the  bar  only  two  years,  may  be  instanced.  This  case  brought 
under  discussion  the  powers  of  the  confederated  states  and  the  rights  of 
the  individual  states,  and  is  especially  interesting  as  it  first  drew  Ham- 
ilton's attention  to  the  consideration  of  principles  growing  out  of  the 
union  of  the  states  and  the  establishment  of  independence — principles 
which  he  afterward  elaborated  in  the  discussion  in  the  national  con- 
vention of  ITST,  and  which  were  embodied  in  the  constitution  of  the 


348  HISTORY   OF   THE   BENCH   AND   BAR   OF   NEW   YORK 

United  States.  The  case  was  this :  On  March  17,  1783,  an  act  was 
passed  by  the  New  York  legislature,  providing  that  any  one  who,  by 
reason  of  the  invasion  of  the  enemy,  had  left  his  place  of  abode,  might 
bring  an  action  of  trespass  and  recover  damages  against  any  person 
who  had  occupied  it,  or  who  had  injured  his  real  or  personal  property, 
or  against  any  one  who  had  received  his  goods  or  effects  while  the 
same  were  under  the  control  of  the  enemy  ;  and  prohibiting  the  defend- 
ant from  pleading  or  giving  in  evidence,  as  a  defence,  that  the  prop- 
erty was  occupied,  injured,  or  destroyed  by  a  military  order  or  com- 
mand. The  action,  which  was  the  first  under  the  statute,  was  brought 
to  recover  six  years'  rent  for  the  occupation  by  the  defendant  of  a 
brew-house  in  New  York  City,  while  that  city  was  in  the  possession  of 
the  British.  The  defendant  pleaded  the  possession  of  the  city  by  the 
British  army  ;  a  license  from  the  commissary-general  to  him,  a  British 
subject,  to  use  and  occujDy  the  place,  and  also  a  direct  authority  from 
Sir  Henry  Clinton,  the  commander-in-chief,  to  so  occupy  it ;  and  finally 
the  treaty  of  peace,  ratified  at  Annapolis  on  January  14, 1784,  by  which 
all  claims  that  the  citizens  or  subjects  of  either  of  the  contracting  par- 
ties might  have  against  the  other  for  indemnity 
were  relinquished.  The  plaintiff  demurred. 
Hamilton  was  retained  by  the  defendant  and 
made  the  principal  argument,  although  several 
great  lawyers  were  associated  with  him  on  be- 
half of  the  defendant.  He  contended  that  the 
act  of  the  legislature  was  in  violation  of  the  law 
of  nations,  which  being  part  of  the  common  law 
had  become  by  the  state  constitution  the  law  of 
the  state,  and  followed  it  up  by  an  elaborate  and 
masterly  exposition  of  the  rights  of  war  and  of 
HAMILTON  MON.MKNT.  ^^^^  relatlou  of  belllgereuts  to  each  other,  in  their 
capacity  as  individuals,  when  the  war  is  put  an  end  to.  He  claimed 
that  the  defendant  was  covered  and  protected  by  the  treaty,  and  in- 
sisted that  it  was  not  in  the  power  of  the  state  to  deprive  him  of  that 
which  the  treaty  had  secured  to  him.  Mayor  Duane,  in  his  opinion, 
upheld  Hamilton's  position  and  decided  that  the  statute  was  uncon- 
stitutional. This  was  probably  the  first  case  in  which  an  American 
court  pronounced  a  statute  unconstitutional,  so  it  may  be  seen  that 
Marbury  vs.  Madison  was  not  the  first  case  in  which  tlie  constitution 
was  invoked  against  a  statute.' 

After  Hamilton  retired  from  Washington's  cabinet  he  accumulated 
a  large  mercantile  practice,  his  familiarity  with  shipping,  acquired 
when  a  boy,  being  of  great  assistance  to  liim.  The  cases  of  Barnewall 
vs.  Churcli,  Lawrence  vs.  Van  Home,  Coulon  vs.  Bowne,  and  Maggrath 
vs.  Higgins,  all  reported  in  Caines'  1st  Term  Reports,  are  imi)ortant 
ones  dealing  with  questions  arising  under  policies  of  insurance.    The 

'  Sfu  Judge  Daly's  •'  Historical  Sketch  of  the  Judicial  Tribunals  of  New  York,"  pp.  CO-63. 


IIISTOKY    OK    TIIK    UKXCII    AND    HAK    Ol'    NKW    VOUK  .'MI) 

two  latter  cases  are  instructive  as  sliowin;^  Ilainiltoirs  traintHl  initul 
and  how  he  was  capable  of  niakin<>j  fine  and  subtle  distinctions,  as  also 
his  gras])  of  the  philological  nieaniiii^s  of  words.  In  one  of  these  there 
had  been  a  iei>i'esentation  to  the  effect  that  "Mr.  (Joulon  is  a  natural- 
ized citizen  of  the  United  States  .since  the  year  17i)4.'"  It  was  contended 
that  this  vitiated  tlie  i)<)licy  because  Coulon  after  naturalization  liad 
ceased  to  be  a  citizen.  Hamilton  argued,  and  the  court  sustained  him, 
that  the  representation  oidy  meant  that  Coulon  was  naturalized  since 
1794,  but  it  was  not  necessary  lor  him  to  have  been  a  citizen  "ever 
since."  The  case  of  Henderson  ^)S.  Brown,  in  1st  Caines'  Term  Reports, 
is  also  an  im])ortant  one.  The  defendant  was  collector  of  the  direct 
continental  tax,  and  entered  a  theatre  and  distrained  money  in  that 
capacity.  He  w^as  sued  in  trespass.  Hamilton  contended  that  a  state 
court  could  not  enter  into  any  examination  of  the  acts  of  the  mere 
ministerial  officers  of  the  general  government,  acting  under  their  reve- 
nue laws.  The  Supreme  Court  sustained  Hamilton's  position.  Kent 
was  one  of  the  judges  who  rendered  opinions  in  this  case. 

During  Hamilton's  practice  at  the  New  York  bar  he  had  for  con- 
temporaries Aaron  Burr,  Colonel  Troup,  Edward  Livingston,  Brockholst 
Livingston,  Egbert  Benson,  Morgan  Lew  is,  and  Josiah  Ogden  Hoffman, 


AMILTON,  ALEXANDER  (born  in  New  York  City,  in 
January,  1816  ;  died  at  his  country  place,  "  Nevis,"  near 
Irvington,  New  York,  December  30,  1890),  was  the  son  of 
James  Alexander  Hamilton  (q.  v.)  and  grandson  of  the 
famous  Alexander  Hamilton.  His  mother  was  a  daughter  of  Robert 
Morris,  nearly  related  to  Gouverneur  Morris.  General  Philip  Schuyler 
was  his  great-grandfather.  He  was  educated  at  AYest  Point,  stand- 
ing second  in  a  class  of  fifty  \vhen  his  father  withdrew  him  in  his 
fourth  year  at  the  academy.  The  subsequent  two  years  were  spent 
with  his  family  in  Europe.  After  his  return,  Washington  Irving  hav- 
ing been  appointed  minister  to  Spain,  Mr.  Hamilton  accompanied  him 
as  secretary  of  legation  and  later  became  cJiarge  cV affaires.  In  May, 
1844,  he  left  Spain,  and  after  short  sojourns  in  France  and  England 
returned  to  New  York  to  pursue  the  study  of  law. 

Mr.  Hamilton  soon  took  rank  among  the  recognized  lawyers  of 
New  York  City.  He  made  a  specialty  of  marine  insurance,  and  in  this 
branch — in  which  his  eminent  grandfather  also  excelled — he  was  con- 
sidered an  authority.  His  large  corporation  practice  included  such 
clients  as  the  General  Mutual  Insurance  Company,  the  New  Haven  Rail- 
road Companj^,  the  Havre  Steamship  Company,  the  London,  Liverpool 
and  Globe  Insurance  Company  and  the  Orient  Mutual  Insurance  Com- 
pany. Mr.  Hamilton  distinguished  himself  in  the  cases,  in  the  United 
States  Supreme  Court,  of  the  Orient  Insurance  Company,  Plaintiff  in 
Error,  vs.  Wright  (23  Howard,  401)  and  the  Insurance  Companies  vs. 


350 


IIISTOEY   OF   THE   BENCH   AJTD   BAR   OF   NEW    YORK 


Wright  (1.  Wallace,  456).  Among  his  other  notable  cases  were  Bar- 
gett  vs.  the  Orient  Insurance  Company  (3  Bosw.,  3S5),  Bunker  vs.  the 
same  (8  Bosw.,  448),  Day  vs.  the  Orient  (1  Daly,  13),  and  Ogden  vs.  the 
General  Mutual  Insurance  Company  (9  Duer,  204). 

Upon  the  outbreak  of  the  civil  war  Mr.  Hamilton  promptly  enlisted 
and  served  on  the  staff  of  Major-General  Wood.  Loss  of  health  forced 
him  to  resign  at  the  expiration  of  three  months'  service,  however, 
although  he  was  active  in  enlisting  troops  and  forwarding  supplies 
until  the  close  of  the  war.  He  was  president  of  the  Knickerbocker  club 
of  New  York  City,  which  he  was  chiefly  instrumental  in  founding, 
president  of  the  board  of  trustees  of  the  Astor  library,  vice-president 
of  the  Society  of  the  Cincinnati,  and  a  member  of  the  Association  of 
the  Bar. 


AMILTON,  ANDREW  (born  in  Scotland  about  1676  ;  died 
in  Philadelphia,  August  4,  1741),  although  a  Philadelphia 
lawyer,  never  connected  with  the  bar  of  New  York,  owes  his 
enduring  reputation  mainly  to  his  conduct  of  and  triumph  in 
the  famous  Peter  Zenger  case,  tried  in  New  York  City  in  1734-35.  There 
has  been  much  historical  speculation  as  to  his  parentage,  but  that  ques- 
tion has  never  been  settled  satisfactorily.  He  appeared  in  Accomack 
county,  Virginia,  in  1697,  as  the  manager  of  a  plantation,  and  afterward 
married  the  widow  of  its  proprietor.  Having  removed  to  Philadelphia,  he 
became  attorney-general  of  Pennsylvania  in  1717.  He  was  a  member  of 
the  provincial  council  from  1721  to  1724,  was  appointed  prothonotary  of 


the  Supreme  Court  and  recorder  of  Philadelphia  in  1724,  and  was  a 
member  of  the  assembly  for  Bucks  county  from  1724  to  1739,  being  its 
speaker  (with  the  exception  of  one  year)  during  the  last  ten  yeai's  of 
his  service.  The  ground  on  which  the  state-house,  afterward  Independ- 
ence Hall,  was  erected  was  purchased  by  him  and  his  son-in-law, 
Allen,  in  1729,  as  a  spot  on  wliich  to  construct  a  suitable  building  for  a 
legislative  hall. 


iiisi(>i:y  ok   imk  itiONcii   ani>  u\k  ov  m:\v   vokk  H.")! 

Andrew  Ilamiltotrs  connection  as  counsel  with  the  Zenker  case  was 
wliolly  voluntary,  without  fee  or  nnvard  of  any  kind— a  circumstance 
wliich  may  quite  reasonably  be  insfance<l  as  a  very  practi(;al  suppoit  of 
the  claim  made  in  his  address  to  the  Pennsylvania  assembly  in  IT.V.),  that 
it  was  love  of  liberty  which  drew  him  to  the  colonies  and  caused  him 
to  abide  in  them.  Peter  Zen<^er,  jiublisher  of  the  New  York  Weekly 
Journal,  had  been  placed  on  trial  by  the  New  York  authorities  for 
seditious  libel  because  of  the  free  criticisms  of  'official  acts  whi(;h  he 
liad  i)rinted  in  his  newspaper.  His  lawyers,  James  Alexander  and 
William  Smith,  had  been  disbarred  because  of  their  contention,  in 
court,  that  the  jud<::es  were  illeiially  commissioned  and  therefore  not 
competent  to  try  the  cause.  Meantime  other  counsel  had  been  assigned 
by  the  chief-justice  (De  Lancey)  to  the  accused  in  theirstead.  Hamil- 
ton, taking-  a  keen  interest  in  the  case,  and  appre- 
hensive that  the  new  counsel  would  not  have  the 
courage  to  manage  it  according  to  its  merits,  as- 
sumed charge  of  it,  advancing  the  argument  that  the  truth  of  the  facts 
in  the  alleged  libel  could  be  set  up  as  a  defence  and  that  the  jury 
were  judges  of  both  the  law  and  the  facts — a  principle  of  law  not  then 
established  in  England.  Although  evidence  as  to  the  truth  of  Zenger's 
publications  was  ruled  out,  Hamilton's  line  of  defence  and  his  eloquent 
address  completely  won  the  jury,  and  a  verdict  of  not  guilty  was  ren- 
dered. He  was  greeted  with  great  acclaim  by  the  people  of  New 
York,  and  throughout  the  colonies  the  importance  of  the  victory  he 
had  won  for  the  liberty  of  the  press  was  fully  appreciated.  Grouver- 
neur  Morris  called  him  "  the  day-star  of  the  American  Revolution." 
He  was  i>i"<^sented  with  the  freedom  of  the  City  of  New  York,  and  a 
resolution  was  passed  by  the  common  council  thanking  him  for  his 
services. 


AMILTON,  JAMES  ALEXANDER  (born  in  New  York  City, 
April  14,  1788 ;  died  in  Irvington,  New  York,  September 
24,  1878),  a  son  of  Alexander  Hamilton,  was  graduated  at 
Columbia  College  in  180o,  served  in  the  war  of  1S12  as  bri- 
gade major  and  inspector  of  New  York  state  militia,  and  engaged  in 
the  practice  of  the  law.  He  was  a  respectable  figure  at  the  New  York 
bar,  and  in  1S29  became  United  States  district  attorney  for  the  south- 
ern district  of  the  state. 


AMILTON,  JOHN  CHURCH  (born  in  Philadelphia,  August 
2-2,  1792  ;  died  in  Long  Branch,  New  Jersey,  July  25,  1S82), 
another  son  of  Alexander  Hamilton,  w^as  graduated  from 
Columbia  College,  was  aide-de-camp  to  General  Harrison  for 

a  brief  time  in  the  war  of  1812,  and  became  a  lawyer  in  New  York. 

He  devoted  a  large  part  of  his  life  to  literary  labors  in  connection  with 


S52  IIISTOKY    OP  THE   BENCH   AND   BAR   OF   NEW   YORK 

the  events  of  liis  father's  career,  publishing  a  "Life  of  Alexander 
Hamilton  "  (1832-40,  2  vols.)  and  a  "  History  of  the  Republic  of  the 
United  States,  as  Traced  in  the  Writings  of  Alexander  Hamilton  and 
His  Contemporaries  "  (1850-58). 


AMILTON,  PHILIP  (born  in  New  York  City,  June  1,  1802  ; 
died  in  Poughkeepsie,  New  York,  July  9,  1884),  another  son 
of  Alexander  Hamilton,  studied  and  practiced  law,  becoming 
assistant-district-attorney  in  New  York  City  and  judge  ad- 
vocate of  the  naval  retiring  board  in  Brooklyn. 


AND,  AUGUSTUS  C.  (born  in  Stoneham,  Vermont,  Septem- 
ber 4,  1803  ;  died  in  Elizabeth  town.  New  York,  March  8, 
1878),  obtained  his  legal  education  at  Litchfield,  Connecticut, 
and,  removing  to  Elizabethtown,  New  York,  engaged  in  suc- 
cessful practice,  receiving  in  a  brief  time  the  appointment  of  surrogate 
of  Essex  county.  He  gradually  built  up  a  reputation  as  one  of  the 
ablest  jurists  of  that  part  of  the  state.  From  1839  to  1841  he  was  a 
democratic  member  of  congress,  and  from  1845  to  1848  served  in  the 
senate  of  New  York,  being  chairman  of  its  judiciary  committee.  He 
was  a  justice  of  the  Supreme  Court  and  judge  of  the  Court  of  Appeals 
from  1848  to  1855,  but  was  defeated  when  a  candidate  for  re-election. 
From  the  time  of  his  retirement  from  the  bench  until  his  death  he 
devoted  himself  to  professional  practice. 


AND,  SAMUEL  (born  in  Elizabethtown,  New  York,  in  1834  ; 
died  in  Albany,  May  21,  1886),  a  son  of  the  preceding,  was 
graduated  from  Hamilton  College  at  an  early  age,  and  en- 
tered the  law  office  of  his  father  in  Elizabethtown,  where  he 
remained  until  1860.  He  then  formed  a  partnership  with  John  V.  L. 
Pruyn  at  Albany,  and  upon  Mr.  Pruyn's  retirement  in  1861  became 
the  junior  partner  of  the  firm  of  Cagger,  Porter  &  Hand,  which  was 
changed  to  Cagger  &  Hand  in  1865  upon  Mr.  Porter's  elevation  to  the 
bench.  The  firm  again  changed  in  1865  with  the  tragic  death  of  Mr. 
Cagger,  Matthew  Hale  being  admitted,  and  later  Nathan  Schwartz 
and  Charles  S.  Fairchild  were  admitted.  The  death  of  Mr.  Schwartz 
and  the  election  of  Mr.  Fairchild  to  office  left  Mr.  Hand  and  Mr.  Hale 
alone  in  partnership,  which  continued  without  further  change  until 
dissolved  by  mutual  consent  a  few  years  prior  to  Judge  Hand's  death. 

Mr.  Hand  in  1866  was  counsel  for  the  city  of  Albany,  and  from  Jan- 
uary, 1869,  to  March,  1872,  he  was  reporter  of  the  Court  of  Appeals.  In 
June,  1878,  he  was  appointed  by  Governor  Robinson  to  fill  the  vacancy 
on  the  Court  of  Api)eals  bench  caused  by  the  death  of  Associate-Judge 


IllsroliV    (»|.'    IIIK    liKNCII    AM)    MAi:    (»K    N  KW    ^<ii;k  Xi'A 

Allen.  He  licM  tliis  jjosilioii  until  succeeded  by  .Ind^e  Diinfoitli,  wji,) 
was  eh'cted  in  the  fall  of  JSTS.  IK>  was  a  nieniher  of  the  charter  com- 
niission,  by  appointment  of  (Jovernor  'IMlden,  of  which  William  M. 
I'lvarts  was  chairman.  Altlion<^h  in  later  years  i-ejx'atedly  offered 
honorable  and  Incrative  posts,  lie  steadfastly  declined  them. 

He  was  recognized  as  one  of  tlie  most  successful  practbionei's  of 
his  day  before  the  Court  of  Appeals.  His  style  was  clear  and  forcible 
and  though  not  an  elocpient  speaker  he  always  lield  attention,  lie 
took  a  prominent  jiart  in  the  Dudley  will  case,  was  senior  counsel  in 
all  the  elevated  railroad  cases  of  1S70,  and  was  principal  counsel  for 
the  state  against  Beldeii  and  the  canal  contractors. 


.\R1S0N,  RiCIIARD  MORLEY  (born  in  New  York  City, 
September  23, 188;} ;  died  in  Astoria,  Long  Island,  December 
t?"2,  1895),  was  descended  from  a  distinguished  legal  family, 
lie  was  graduated  in  1852  at  llobart  College,  and  after 
studying  law  with  Orlando  Mead,  of  Albany,  entered  the  Albany  Law 
School,  from  which  he  graduated  in  1859.  He  began  practice  in  New 
York  in  association  with  his  brother,  George  L.  D.  Harison,  and 
Gonverneur  M.  Ogden,  his  father's  former  partner.  In  1866  he  formed 
a  partnership  witli  Honorable  Alexander  AV.  Bradford,  and  upon  Judge 
Bradford's  death  with  Julien  T.  Davies.  Later  he  joined  the  firm  of 
Varnum  &  Tnrney,  which  became  successively  Yarnum,  Turney  & 
Harison  and  Varnum  &  Harison.  He  was  one  of  the  founders  of  the 
Association  of  the  Bar  and  of  the  Lawyers'  Title  Insurance  Company. 


ARRINGTON,  EBENEZER  BURKE  (born  near  Lyons, 
^Yayne  county,  New  York,  in  1813  ;  died  in  Detroit,  Michi- 
gan, in  1844),  was  a  prominent  legal  compiler  in  this  state 
and  Michigan,  and  although  he  died  at  the  early  age  of 
thirty-one  performed  valuable  work.  He  was  admitted  to  the  bar  in 
1837,  but  had  previously,  with  the  collaboration  of  Oliver  L.  Barbour, 
prepared  a  digest  of  equity  cases,  American  and  English,  Avhich  was 
published  at  Saratoga.  He  did  not  actively  practice  law  in  the  State 
of  New  York,  removing  soon  after  his  admission  to  the  bar  to  Michigan, 
where  he  assisted  E.  J.  Roberts  in  arranging  and  indexing  the  state 
laws,  and  from  1839  until  his  death  served  as  state  reporter,  publishing 
"  Harrington's  Chancery  Reports  "  (Detroit,  1844). 

'nis  father,  William  H.  Harison,  was  a  highly  re-  colonial  judge  of  the  New  York  Supreme  Court,  and 

s[)Octed  practitioner  in  New  York,  retiring  in  the  early  subsequently  chief-justice  of  New  Brunswick, 

forties.  His  maternal  grandfather,  Thomas  Ludlow  Ogden, 

His  grandfather  was  a  very  eminent  lawyer  of  the  was  an  eminent  chamber  counsellor,  and  the  latter's 

period  immediately  following  the  Revolution,  was  the  father,  Abraham  Ogden,  was  United  States  attorney  for 

first  United  States  district-a  torney  for  the  New  York  the  district  of  New  Jersey,  and  was  the  son  of  David 

district  (appointed  by  Washington),  and  was  recorder  Ogden,  judge  of  the  Supreme  Court  of  the  Province  of 

ol  the  city  for  many  years.  New  Jersey. 

His  great-grandfather,  George  Duncan  Ludlow,  was 


354  HISTORY    OF   THE   BENCH    A:^T>    BAR    OF   NEAV  YOKK 

ARRIS,  IRA  (born  in  Charleston,  Montgomerj'  county,  New 
York,  May  31,  1802  ;  died  in  Albany,  December  2,  1875),  was 
the  eldest  son  of  Frederick  Waterman  Harris  and  Lncy 
Hamilton. '  Both  his  parents  were  natives  of  the  state.  He 
attended  an  academy  at  Homer,  New  York,  and  was  graduated  from 
Union  College,  with  the  first  honors,  in  1824.  He  studied  law  in  the 
offices  of  Augustus  Donnelly  at  Homer  and  Chief-Justice  Ambrose 
Spencer  at  Albany,  being  admitted  to  the  bar  in  1827  and  commencing 
practice  in  Albany,  soon  after  associating  himself  with  Salem  Dutcher. 
Afterward  he  was  in  partnership  with  Julius  Rhodes.  He  gradually 
worked  his  way  to  the  front  rank  of  practitioners,  especially  excelling 
in  equity  practice.  He  was  chosen  a  member  of  the  legislature  in  1844 
and  of  the  constitutional  convention  in  1846.  In  the  latter  body  he 
was  prominent  in  advocating  amendments  securing  to  married  women 
their  rights  in  property  inherited  and  acquired,  establishing  an  elective 
judiciary,  uniting  law  and  equity  jurisdiction,  and  providing  for  the 
simplification  of  pleadings  and  practice  in  the  courts.  In  the  fall  of 
1846  he  was  elected  to  the  state  senate,  but  resigned  his  seat  the  next 
spring  to  become  a  justice  of  the  State  Supreme  Court.  To  this  office 
he  was  re-elected  in  1851  for  a  term  of  eight  years.  On  the  bench  he 
displayed  superior  judicial  qualities,  being  conspicuously  fair,  lucid  in 
his  exposition  of  the  law,  and  industrious  in  the  dispatch  of  business. 

In  1861  he  was  elected  by  the  legislature,  after  an  exciting  con- 
test—his competitors  being  William  M.  Evarts  and  Horace  Greeley,— 
to  represent  New  York  iA  the  senate  of  the  United  States.  In  the 
senate  he  served  on  the  committees  on  foreign  relations,  on  the 
judiciary  and  on  the  southern  states.  He  was  a  close  personal  friend 
of  President  Lincoln,  and  gave  strong  support  to  the  great  measures  of 
policy.  But  though  an  ardent  republican,  he  manifested  a  dispassionate 
spirit  on  a  memorable  occasion,  opposing  the  effort  to  expel  Senator 
Bright  of  Indiana*  for  his  action,  just  before  the  war,  in  writing  to 
Jefferson  Davis  a  letter  introducing  a  friend  who  wished  to  dispose  of 
what  he  regarded  as  a  great  improvement  in  firearms.  He  retired  from 
the  senate  upon  the  expiration  of  his  term  in  1867.  In  that  year  he 
was  a  member  of  the  New  Y^'ork  constitutional  convention.  With 
drawing  from  all  public  employments,  he  became  a  lecturer  in  the 
Albany  Law  School  (with  which  he  had  been  connected  more  or  less 
since  1850),  and  during  the  remainder  of  his  life  devoted  himself  to  the 
duties  of  that  position.  Throughout  his  career  he  took  an  especial 
Interest  in  educational  work,  being  identified  in  an  active  or  honorary 
capacity  with  various  institutions. 

>  Honorable  Hamilton  Harris,  the  distinguished  jurist  of  Albany,  is  his  brother. 


IKY    OK     IIIK    IU.N( 


IK  m:\v   y<>i;k 


ASHROrCK,  AliKAlIA.M  lUM'YN  (born  in  Kin<rsl,on,  New 
York,  ill  NovciMb.T,  I7;»I  ;  d'wd  tluMv,  F('l)niary'j:},  187Jii, 
was  gnuliuitcd  from  Vale  Col lt'<:;e  in  ISK)  and  vr.is  adiiiiltctl 
to  the  bar  in  181:}  after  stndying  at  Hudson,  New  York,  and 
at  Lil(']di(>ld,  (Jonnecticnt.  He  opened  a  law  oflice  at  Kingston  and 
was  a  prominent  jjrax^titioner  there,  taking  also  an  interest  in  politics, 
lie  served  a  term  in  congress  from  1825  to  1827.  He  was  an  excellent 
scholar  and  was  i)rominent  in  religions  work  and  in  ])romoting  histori- 
cal research.  P"'roni  1840  to  18r)0  he  was  i)resident  of  Rutgers  College, 
and  he  also  served  as  vice-i)resident  of  the  American  Bible  Society  and 
president  of  the  Ulster  county  Historical  Society. 


A'PHEWAY,  SAMUEL  GILBERT  (born  in  Freetown,  Cort- 
land county,  New  York,  January  18,  J 810  ;  died  in  Solon, 
New  York,  April  16,  1864),  was  the  son  of  Major-General 
Samuel  G.  Hatheway  and  Sally  Emerson.'  He  enjoyed  ex- 
cellent educational  advantages,  being  graduated  from  Union  College  at 
tlie  age  of  twenty-one.  He  then  entered  the  law  office  of  Honorable 
Jonathan  L.  Woods  at  Cortland,  and  continued  and  completed  his  pro- 
fessional studies  under  Honorable  Hiram  Graj'  at  Elmira,  being  ad- 
mitted to  the  bar  in  1886.  He  formed  a  legal  copartnership  with  Hon- 
orable James  Dunn,  of  Elmira,'  which,  however,  lasted  for  only  one 
year,  after  which  he  established  an  association  with  his  former  precep- 
tor, Judge  Gray.  This  continued  until  1846,  when  Judge  Gray  was 
appointed  to  the  circuit  bench  of  the  state.  Mr.  Hatheway  thereupon 
connected  himself  with  Honorable  A.  S.  Diven  and  James  L.  Woods  in 
the  firm  of  Diven,  Hatheway  &  AVoods.  This  soon  became  one  of  the 
most  prominent  and  successful  legal  firms  in  the  state,  and  it  was  dis- 
solved only  by  the  death  of  Colonel  Hatheway. 

His  legislative  career  was  confined  to  the  state  assembly  in  1842 
and  1843.  In  the  assembly  of  1843  he  was  conspicuous  for  ins  advo- 
cacy of  a  bill  providing  for  the  completion  of  the  unfinished  public 
works.  He  was  nominated  by  the  democratic  party  for  congress  in 
18.")6  and  1862,  but  was  defeated.  He  served  in  the  war  as  colonel  of 
the  141st  regiment  of  New  Y'ork  state  volunteers,  resigning  in  1863  in 
consequence  of  a  pulmonary  disease  which  soon  afterward  caused  his 
death.  ^ 

He  was  a  man  of  large  wealth  and  had  refined  tastes,  especially  in 
literature.     At  the  bar  lie  was  most  eminent  as  an  advocate  before  a 

jury. 


'  Samuel  Gilbert.  Hatheway,  the  elder,  was  born  in 
I-'reetowu,  Massachusetts,  in  1T80,  and  died  in  Solon, 
New  York,  May  2,  1867.  He  was  descended  from  a 
Very  old  English  family,  one  of  his  ancestors  being  Sir 
Ilumplirey  Gilbert.  He  was  a  pioneer  of  Cortland 
county,  Xew  Y'ork,  settling  tliore  in  1808.    He  was  a 


nieniber  of  the  assembly  in  1814  and  1818.  stAte  senator 
ill  1823,  member  of  congress  from  1833  to  1835,  and  nia- 
Jor-general  in  the  state  militia  (commissioned  in  1823). 
He  was  a  highly  influcniial  man  in  central  New  Y"ork,  a 
prominent  democrat,  and  a  friend  of  Andrew  Jackson 
and  Miirtin  Van  Buren. 


356  HISTORY   OF  THE  BENCH   AND   BAR   OF   NEW   YORK 


XYEN,  SOLOMON  GEORGE  (born  in  Chenango  county, 
New  York,  November  27,  1810  ;  died  in  Buffalo,  New  York, 
December  24,  1861),  was  the  son  of  a  farmer,  but  received  a 
substantial  elementary  education,  upon  which  he  enlarged 
by  subsequent  study.  lie  at  first  contemplated  entering  the  medical 
profession,  but  changed  his  design  and  undertook  the  study  of  law  at 
Geneseo  under  the  direction  of  General  John  Young,  afterward  gover- 
nor of  New  York.  From  Geneseo  he  removed  to  Buffalo  in  1885, 
where  he  linished  his  preparation  for  the  bar  in  the  office  of  Millard 
Fillmore,  and  the  next  year  he  was  admitted  to  Mr.  Fillmore's  firm, 
which  thereupon  became  Fillmore,  Hall  &  Haven.  He  filled  important 
local  offices,  being  successively  commissioner  of  deeds,  district-attorney 
of  Erie  county,  and  mayor  of  Buffalo.  He  was  a  prominent  whig  and 
republican  member  of  congress,  serving  from  1851  to  1857. 


|AWKINS,  DEXTER  ARNOLD  (born  in  Camden,  Maine, 
June  23,  1825  ;  died  in  New  York  City,  July  24,  1886),  was 
graduated  at  Bowdoin  College  in  1848.  He  devoted  a  num- 
ber of  years  to  educational  activities,  delivering  lectures 
before  teachers'  institutes,  serving  for  a  time  as  principal  of  Topsham 
academy,  and  travelling  abroad,  under  a  commission  from  the  gover- 
nor of  Maine,  for  the  purpose  of  examining  European  methods  of 
instruction.  He  studied  law  at  Harvard  and  later  at  the  I^Jcole  des  droits 
in  Paris,  entering  upon  its  practice  in  New  York  in  1854.  Through- 
out the  rest  of  his  life,  which  was  spent  in  the  City  of  New  York,  he 
devoted  much  of  his  attention  to  educational  and  economic  subjects 
and  the  questions  of  the  day,  being  effective  both  as  a  speaker  and  a 
writer.  He  was  instrumental  in  the  founding  of  the  federal  biireau 
of  education,  and  through  his  intelligent  efforts  various  changes  in  the 
interest  of  progress  were  instituted  in  New  York  state  legislation. 
An  amendment  to  the  constitution  prohibiting  donations  of  public 
property  to  private  corporations  (1873)  was  largel}^  the  result  of  a 
pamphlet  written  by  him.  In  1871  he  wrote  a  report  on  the  "Extrav- 
agances of  the  Tweed  Ring,"  which  j^receded  the  Times  exposures  and 
helped  to  cultivate  the  strong  public  sentiment  that  soon  afterward 
overwhelmed  the  ring.  His  published  writings  comprise  also  works  on 
free  trade  and  protection,  the  money  question,  and  sectarian  appropria- 
tions. * 

|AWLEY,  WILLIAM  MERRILL  (born  in  Delaware  county. 
New   Yoi'k,   August  23,   1802  ;  died  in  Hornellswille,  New 
York,  February  9,  1869),  was  the  son  of  an  early  settler  of 
western  New  York,  and  had  only  very  limited  educational 
opportunities.     At  the  age   of  twenty-two,  being  elected  a  constable, 


IIIsrOKY    OF   'IllK    ItKNCII    AM)    HAIJ    OK    WAV    VOKK  '.C)! 

lor  llic  (liscluirgo  of  liisodicjal  duties.  In  \H2V>  he  \v:is;i(liTiitt<'(l  (o  tin-  l):ii\ 
;iii(l  in  IH'JT  he  (Mi|;ji<;t'(l  in  jjijicticc  in  Iloi-ncllsvillc.  IIimc  In-  IttTinin- 
pioniincnl,  and  nine  years  later  he  was  ai)i)oinfe(l  tlie  lirsl:  judge  of 
Steuben  county.  He  represented  the  county  as  a  denux'rat  in  tiie  state 
senate.  At  the  deinoerati(^  national  convention  of  1848  he  was  one 
of  the  free-soil  element  which  subseciuently  nominated  Mai'tin  Van 
Uuren  for  i)resident  on  a  separate  platform.  Aside  from  his  services 
as  a  state  senator  and  a  county  jud<i:e  he  held  no  oflices  of  imjjortance. 
He  gained  a  large  and  lucrative  i)ractice  at  the  bar,  and  was  highly 
esteemed  for  his  abilities  and  personal  qnalities. 


I  ERRING,  ELBERT  (born  in  Stratford,  Connecticut,  July  8, 
1777;  died  in  New  York 'City,  February  20,  lS7f)),  was  an 
eminent  lawyer  at  the  New  York  bar  in  the  early  part  of  the 
nineteenth  century.  He  was  the  legal  preceptor  of  men  wlio 
afterward  become  highly  distinguished,  one  of  them  being  Charles 
O'Conor.  lie  was  graduated  in  1795  at  Princeton  College,  lie  held 
several  prominent  offices :  was  judge  of  the  Marine  Court  for  three 
years  from  its  creation  in  1805,  and  later  was  again  called  to  that 
bench  ;  was  the  lirst  register  of  the  state  of  New  York,  serving  for 
five  years  from  1812,  under  appointment  by  De  Witt  Clinton,  avIio 
was  his  personal  friend  ;  and  was  the  first  commissioner  of  Indian 
affairs  (18;52-8t)).  He  lived  to  be  nearly  ninety-nine  years  old,  and 
preserved  his  faculties  and  health  to  the  end  of  his  life  ;  but  for  more 
than  thirty  years  he  lived  in  retirement. 


ICKS,  WHITEHEAD  (born  in  Flushing,  Long  Island,  August 
24,  1728  ;  died  there,  in  October,  17sO),  was  one  of  the  leading 
lawyers  of  the  colonial  bar  of  New  York.  He  practiced  in 
the  City  of  New  York,  being  admitted  in  1750.     From  1752 

to  1757  he  was  clerk  of  Queens  county,  and  from  1766  to  1776  mayor  of 

New  York.     In    December,   1775,  he    was  appointed  judge  of  the 

Supreme  Court,  but  he  never  took  his  seat.     With 

Ilorsmanden,  Ludlow,  Samuel  Jones,  John  Tabor 

Kemjie  and  Benjamin  Kissam  he  signed  (October 

10, 177(5)  a  petition  to  Lord  Howe  for  the  restoration  of  civil  power  in 

the  place  of  military  rule.     He  was  of  a  jovial  disposition,  and  popular 

with  his  brethren  of  the  bar  and  with  the  public. 


ILL,  NICHOLAS  (born  in  Florida,  Montgomery  county.  New 
York,  October  16,  1806  ;  died  May  1,  1859),  was  a  son  of  Rev- 
erend Nicholas  Hill,  a  revolutionary  soldier  and  a  man  of 
"'^^""    sterling  qualities,  who  was  of  the   third   generation  from 
Adam  Hill,  born  in  county  Derry,  Ireland.      Nicholas  Hill,  Junior, 
after  teacliino-  school  for  some  years,  was  admitted  to  the  bar,  1829, 


358  HISTORY   OF  THE   BENCH   AND   BAK   OF   NEW   YORK 

and  began  practice  at  Amsterdam,  New  York,  in  partnership  with 
Deodatus  Wright.  Later,  becoming  associated  with  Esek  Cowen,  of 
Saratoga,  he  assisted  him  in  the  j) reparation  of  the  "  Notes  to  Phillips 
on  Evidence."  This  period  of  Mr.  Hill's  life,  says  a  biographer,  was  one 
of  incessant,  laborious  industry.  He  was  appointed  in  1836  by  the 
Court  of  General  Sessions  district-attorney  of  Saratoga  county,  but 
resigned  the  next  year.  From  1840  to  1845  (when  he  resigned)  he  was 
state  reporter,  publishing  in  that  time  seven  volumes  of  reports  of  the 
Court  of  Errors  and  the  Supreme  Court.  These  are  models  of  consci- 
entious and  intelligent  reporting.  He  next  formed  a  legal  copartner- 
ship at  Albany  with  Peter  Cagger,  in  which  Honorable  John  K.  Porter 
soon  joined,  the  finn  becoming  Hill,  Cagger  &  Porter.  From  1845 
until  his  death  he  devoted  himself  mainly  to  the  arguing  cf  causes  on 
appeal,  and  it  is  said  that  he  argued  a  greater  number  of  causes  in  the 
Court  of  Appeals  than  any  other  lawyer  of  the  state  in  the  same  j)eriod. 
Nicholas  Hill  was  one  of  the  great  New  York  lawyers  of  his  day. 
A  memorial  prepared  by  a  committee  of  the  bar  thus  characterized 
him  :  "  It  is  not  too  much  to  say  that  by  the  common  consent  of  the 
bar  Mr.  Hill  stood  foremost  among  the  first."  He  had  no  taste  for 
jury  practice,  and  indeed  it  is  said  of  him  that  he  was  never  known  to 
sum  up  a  case  before  a  jury.  Moreover,  in  his  peculiar  field  he  owed 
nothing  to  eloquence,  for  he  was  without  the  oratorical  temperament. 
The  clearness  and  force  of  his  arguments  constituted  his  sole  reliance. 


OBART,  JOHN  SLOSS  (born  in  Fairfield,  Connecticut,  in 
1738  ;  died  February  4, 1808),  was  a  prominent  lawyer  of  the 
J  later  colonial  bar  and  held  important  judicial  offices  during 
and  after  the  Revolution.  Graduating  from  Yale  in  1757,  he 
prepared  himself  for  the  bar  and  entered  upon  })ractice  in  this  state. 
At  the  outbreak  of  the  revolutionary  troubles  he  took  the  patriot  side, 
being  a  member  of  the  provincial  convention  of  1775  and  having  a 
hand  in  the  drafting  of  the  original  constitution  of  the  state.  After 
the  war  he  was  a  judge  of  the  Supreme  Court.  In  1798  he  was  chosen 
to  represent  New  York  in  the  senate  of  the  United  States,  but  soon 
resigned  the  office  to  accept  the  position  of  United  States  district  judge. 


OBBIE,  SELAH  R.  (born  in  Newburgh,  New  York,  March 
10,  1797;  died  in  AYashington,  T>.  C,  March  23,  1854),  com- 
menced his  legal  career  in  the  town  of  Delhi,  Delaware 
county,  and  became  prominent  both  professionally  and  po- 
litically in  that  part  of  the  state.  He  was  district-attorney  of  Dela- 
ware county  from  1823  to  1827,  was  a  brigade-major  and  inspector  of 
militia,  and  was  a  democratic  member  of  congress  from  1827  to  1829. 
From  1832  until  his  death,  with  an  intermission  of  but  two  years,  he 
was  one  of  the  assistant-i)Ostmasters-general  of  the  United  States. 


Mi:.\('ll     AM 


:u» 


OFKMAN,  .lOlIN  THOMPSON  (horn  in  Sin^r  sin^^  New 
Yolk,  .lannjiry  lo,  182S  ;  died  in  Wicsbiulen,  (JiMinany, 
Marcli  24,  1888),  was  <^ra<liiatt'(l  at  I'nion  (JolU't^e  in  184(!.  and 
al'tei-  three  years  of  stndy  was  admitted  to  tlie  bar,  establisli- 
iiin-  an  oHice  in  the  City  of  New  York,  where  he  enjoyed  nineii  success 
in  his  profession.  Later  he  became  active  in  i)()Iitics  as  a  (U'inociat. 
and  from  tiie  beginnin";  of  the  war  he  was  constantly  in  puljlic  life. 
In  18(50  he  was  eU'cted  recorder  of  the  city,  and  lie  was  again  elected 
to  that  office  in  18(58.  As  recorder,  althongh  a  democrat,  he  dealt 
sternly  with  the  draft  rioters.  He  was  twice  elected  mayor  of  the  city 
(18()r)  and  18(57).  He  was  three  times  the  democratic  candidate  for  gov- 
ernor, and  was  twice  elected  (18G8  and  1870).  Dnring  his  second  gnber- 
natorial  term  occnrred  the  exposures  of  the  Tweed  ring  and  its  conse- 
quent downfall.  In  that  eventf(d  period  he  was  an  object  of  strong 
criticism  in  the  press.  After  the  completion  of  his  service  as  governor 
he  retired  from  active  life. 


OFFMAN,  JOSIAH  OGDEN.     See  page  141  of  this  volume. 


pFFMAN,  MURRAY  (born  in  New  York  City,  September 
29,  1791  ;  died  in  Flushing,  Long  Island,  May  17,  1878),  a 
son  of  JosiahOgden  Hoffman,  was  graduated  from  Columbia 
College  in  1809,  and  afterward  was  admitted  to  the  bar  and 
practiced  law  in  New  York  City.  In  1839  he  was  appointed  assistant- 
vice-chancellor,  which  office  he  held  till  1843.  In  1853  he  was  a])- 
pointed  judge  of  the  Superior  Court  of  New  York  City,  and  he 
remained  on  that  bench  till  1801.  He  was  a  voluminous  writer  on 
legal  topics.  Some  of  his  works  are  :  "  Offices  and  Duties  of  Masters 
in  Chancery,"  "  Treatise  on  the  Practice  of  the  Court  of  Chancery," 
"  Treatise  on  the  Corporation  of  New  York  as  Owners  of  Property," 
"  Compilation  of  the  Laws  Relating  to  the  City  of  New  York,"  "  Vice- 
Chancery  Reports,"  "  Provisional  Remedies,"  "  Treatise  on  the  Law 
of  the  Protestant  Episcopal  Church  in  the  United  States,"  and  *'  Ecclesi- 
astical Law." 

I  OFFMAN,  OGDEN  (born  in  New  York  City,  May  3,  1793 ; 
died  there.  May  1,  1856),  was  a  younger  brother  of  the  pre- 
ceding. He  graduated  with  honors  at  Columbia  College  in 
1812.  After  his  graduation  he  joined  the  navy  and  was  taken 
prisoner  with  Decatur,  under  whom  in  1815  he  served  in  the  Avar  on  the 
Barbary  states.  He  left  the  navy  in  1816  and  went  to  Orange  county, 
New  York,  wliere  his  father  owned  a  country  residence,  and  began  the 
study  of  the  law.  He  made  the  acquaintance  of  William  H.  Seward, 
who  at  that  time  lived  in  Orange  county.     He  was  admitted  to  the  bar 


360  HISTORY    OF   THE   BENCH   AND   BAK   OF   NEAV   YORK 

at  Goshen,  New  York,  and  practiced  there  a  few  years.  In  1823  he 
was  appointed  district-attorney  of  Orange  county,  and  in  1825  he  was 
elected  by  the  democrats  to  the  legislature.  He  afterward  removed  to 
iS^ew  York  City,  where  he  practiced  in  partnership  with  Hugh  Maxwell. 
He  joined  the  whig  party  on  account  of  President  Jackson's  removal  of 
the  deposits  from  the  United  States  bank.  He  was  elected  to  the 
legislature  in  1828,  and  subsequently  became  district-attorney  of  New 
York  county.  In  1836  he  was  chosen  a  representative  to  congress  and 
was  re-elected  in  1838,  and  afterward  (1841-45)  became  district-attorney 
for  the  United  States  in  the  southern  New  Y^ork  district.  The  last 
office  he  held  was  attorney-general  of  the  state. 

He  has  been  styled  the  Erskine  of  the  American  bar.  He 
was  probably  the  most  consummate  criminal  lawyer  that  America  has 
produced.  He  was  polished,  suave  and  courteous,  and  never  resorted 
to  bullying  or  browbeating  witnesses,  or  to  any  of  the  other  unpro- 
fessional tricks  so  common  among  the  limbs  of  the  criminal  bar.  One 
of  the  celebrated  cases  he  took  part  in  was  where  a  young  man  named 
Robinson  had  been  indicted  for  the  murder  of  Helen  Jewett,  a  gay 
woman.'  The  prisoner  was  acquitted  wholly  owing  to  Hoffman's 
eloquence  and  tact,  the  evidence  against  him  being  apparently  over- 
whelming. Besides  the  criminal  cases  he  Avas  engaged  in,  he  also  had 
a  large  civil  practice.  He  was  among  the  lawyers  employed  in  the  trial 
of  the  Parish  will  contest.  This  case  probably  occupied  the  attention 
of  more  eminent  lawyers  than  any  other  ever  tried  in  New  York  Cit}-. 
Such  lawyers  as  O'Conor,  Lord,  Dwight  and  Dillon  took  part  in  it. 
Mr.  Hoffman  made  his  last  forensic  effort  in  this  suit.  He  died  poor, 
because  of  his  generous  disposition  and  his  unwillingness  to  see  uq- 
fortunate  people  in  distress.  One  of  his  sons  was  the  United  States 
district  judge  in  California  from  the  time  of  its  admission  to  the  union 
until  1891.  

OGAN,  WILLIAM  (born  in  New  York  City  in  1792  ;  died  in 
Washington,  District  of  Columbia,  about  1875),  was  graduated 
at  Columbia  College  in  1811,  pursued  legal  studies,  and  re- 
moved to  the  Black  river  region,  where  he  became  active  in 
opening  undeveloped  resources,  the  town  of  Hogansport,  on  the  Saint 
Lawrence  river,  being  named  for  him.  He  served  as  a  county  judge 
and  a  Jacksonian  member  of  congress.  In  1850  he  entered  the  state 
department  as  examiner  of  claims,  and  later  he  became  a  government 
translator,  continuing  in  tliat  position  until  1869. 


|OGEBOOM,  HENRY  (born  in  Columbia  county.  New  York, 
in  1808  ;  died  in  Hudson,  New   York,  September  12,  1872), 
was  graduated  at  Yale  College  in  1827,  and  rose  to  prominence 
at  the  bar  of  New  York  state  soon  after  his  admission  (1830). 
He  carried  on  his  practice  in  Hudson,  where  in  1831  he  became  master 


iiisrouv  OK   I  III':  i?i;n('I1  and  I!au  i>i.    m;\v  ^<ll;K  :u;i 

ill  <'h:iiu*ory  and  county  jii(l,ii:(',  ami  in  18:U)  was  clioscn  to  the  Ic^isla- 
Imc.  11(3  was  (IcCcatcd  as  a  candidate  for  Hui)n>nie  jiid^e  in  1847  and 
I cS-lS),  but  was  elected  in  IS')?  and  rc-chM^tcd  in  IHOn,  nieantirnc  sittin^^ 
lor  a  while  on  the  (^)nrt  of  Api)eals  l)ench.  He  was  very  abh'  and 
successful  as  a  lawyer  and  decidedly  clear-nnnded  and  discriminating  as 
a  ju(lii,e.  His  oi)inions  are  conspicuous  also  for  the  quality  of  u  forcible 
and  pleasing  style. 

^OPKINS,  SAMUEL  TITLES  (born  in  Salem,  Connecticut, 
May  i),  177:2 ;  died  in  Geneva,  New  York,  March  9, 1837),  was 
graduated  in  1791  from  Yale  College,  and  two  years  later 
began  to  practice  law  in  Oxford,  New  Y^ork,  whence  he  re- 
moved to  the  City  of  New  Y^ork  in  1794.  He  advanced  there  to  pro- 
fessional prominence,  and  also  held  important  offices,  being  a  repre- 
sentative in  congress  from  1813  to  1815,  and  a  member  of  the  assembly 
from  1820  to  1827.  In  1821  he  took  up  his  residence  in  Albany,  and 
from  1882  to  183G  was  a  judge  of  the  Circuit  Court  of  the  state.  He 
])ublished  in  1827  a  volume  of  chancery  reports,  and  he  was  a  writer 
on  various  legislative  and  social  subjects. 


lORSMANDEN,  DANIEL  (born  in  Gonklhurst,  Kent,  Eng- 
land, in  1(391;  died  in  Flatbush,  New  Y'ork,  September  28, 
1778),  was  the  last  royal  chief -justice  of  the  province  of  New 
Y^ork,  succeeding  De  Lancey.  He  became  a  member  of  the 
city  council  of  New  Y'ork,  May  23,  1733,  and  was  appointed  recorder 
of  the  city  in  1736,  puisne  judge  of  the  Supreme  Court  in  1737,  and 
chief-justice  March  16,  1763.  He  was  a  partisan  of  De  Lancey  and,  as 
a  member  of  the  council,  supported  Governor  Cosbj^  against  Zenger 
and  Van  Dam.  For  this  conduct,  and  for  his  opposition  to  Governor 
Clinton,  he  was  suspended  from  the  council  in  September,  1747, 
and  removed  from  the  offices  of  recorder  and  Supreme  Court  judge. 
But  on  breaking  with  De  Lancey  he  became  reconciled  to  Governor 
Clinton,  and  was  restored  to  the  bench  /-->_  r^^J 
July  ^2%  Yim.  In  1741  he  was  desig-  (/P  Wa^j^^  ^^ 
nated  by  the  assembly  to  codify  the  C^ a^)^i^^^mL 
laws  in  operation  in  the  province,  but  in  consequence  of  ill-health  was 
unable  to  perform  the  work.  He  was  one  of  the  judges  Avho  presided  in 
the  celebrated  '^  Negro  Plot "  trials,  and  published  a  pamphlet  justify- 
ing the  convictions.'  In  the  case  of  Force  vs.  Cunningham,  in  the  fall 
of  1764:,  he  maintained  the  unconstitutionality  of  the  king's  authoriza- 
tion of  an  appeal  fi-om  the  civil  judgments  of  the  Supreme  Court  to 
the  governor  and  his  council.  Before  the  Revolution,  and  during  its 
progress  until  his  death,  he  was  a  loyalist.     He  was  appointed  in  1773 

'  See  pp.  85-8G  of  this  volume. 


862  HISTORY   OF  THE   BENCH   AND   BAR   OF   NEW  YORK 

a  commissioner  to  inquire  concerning  the  burning  of  the  king's  ship 
Gaspe  by  a  party  of  whigs.  He  disapproved  the  declaration  of  inde- 
pendence, and  was  one  of  the  thousand  signers  of  the  petition  of  1776 
to  Lord  Howe  by  the  residents  of  the  City  and  County  of  New  York. 

As  a  barrister  Horsmanden  was  not  a  success,  being  very  mucli 
harassed  by  debts  when  not  in  official  position.  In  the  last  several 
years  of  his  service  on  the  bench  the  annoyances  consequent  upon  his 
superannuation  were  peculiarly  felt  by  the  legal  profession  ;  and  the 
provision  inserted  in  the  first  constitution  of  the  state,  establishing  an 
age  limit  of  sixty  years  for  judges,  was  directly  due  to  that  circum- 
stance. 

He  is  buried  in  Trinity  churchyard. 


OSMER,  GEORGE  (born  in  Farmington,  Connecticut,  August 
80,  1781 ;  died  in  Chicago,  Illinois,  March  6,  1861),  was  a  son 
of  Doctor  Timothy  Hosmer,  one  of  the  earliest  settlers  of 
Ontario  county,  New  York,  and  first  judge  of  that  county.' 
He  engaged  in  the  practice  of  law  at  Canandaigua,  New  York, 
after  completing  a  collegiate  education.  From  there  he  soon  re- 
moved to  Avon,  New  York.  He  took  part  in  the  war  of  1812,  be- 
came district- attorney  of  Livingston  county  in  1820,  served  in  the 
legislature  from  1823  to  1825,  and  afterward  returned  to  his  successful 
practice  at  the  bar. 


OWARD,  NATHAN,  Junior  (died  in  New  York  City  in  Oc- 
tober, 1876),  was  a  well-known  legal  author.  He  edited 
"  Howard's  Practice  Reports,"  which  for  thirty  years  received 
general  recognition  as  a  standard  authority  in  New  York 


state. 


|UBBELL,  LEVI  (born  in  Ballston,  New  York,  April  15,1808; 
died  in  Milwaukee,  Wisconsin,  Decembers,  187(5),  was  gradu- 
ated from  Union  College  in  1827  and  began  his  legal  career 
in  this  state,  becoming  adjutant-general  (1833  to  1836)  and 
member  of  the  assembly  (1841).  After  his  removal  to  Wisconsin,  in 
18-14,  he  was  active  in  the  democratic  party  there.  He  was  a  judge  of 
the  2d  judicial  circuit  and  for  a  year  was  chief-justice  of  the  Su- 
preme Court.  He  was  tried  on  impeachment  charges,  but  was  ac- 
quitted. He  resigned  as  judge  in  1856  and  resumed  his  law  prac- 
tice. From  1871  to  1875  he  was  United  States  district-attorney  at 
Milwaukee. 

'  Doctor  Timothy  HoHmcr  vas  a  brother  of  Titiis  mcr,  chiof-jnstico  of  roiinorlinit  from  1815  to  1833. 

Hosmer,  a  promtiieiit  piihlic  man  of  Coniiecticiit  and  The  family    had    for   its    American    ancestor   colcmol 

judge  of  the  Maritime  Court  of  Appeals  of  the  United  Thomas  Titus,  an  officer  in  Cromwell's  army,  who  came 

States.    lie  was  also  an  uncle  of  Stejjlien  Titus  IIos-  to  Boston  after  the  acceseion  of  Charles  II. 


IIISlOltY    (»K     111)';    ItKNCII    AND    U.Wl    OK    NKW     VoKK  'MY.i 

I'MIMIKKV.  .lAMKSdxnn  in  Fnirlicld,  ConiuTtinit,  Octol).-!- 
!»,  I^ll  ;  (li(Ml  ill  Hrooivlyn,  New  York,  .IiiiU'  17,  lH«ir,),  waa 
iiiadiiMlt'd  ;il  Atiilicrst  (!oIl('<i;(^  in  is;n  and  went  to  Louisville, 
Kentucky,  to  enter  upon  the  practice  of  the  law.  Heinovin^ 
to  New  Yolk  and  c()ntinuiii<;  his  leii-al  practice  he  hecanie  corporation 
counsel  of  Brooklyn  in  1^50-51  and  i-ei)ul)lican  representative  in  con- 
gress from  1851)  to  18(>1,  being  re-elected  to  that  body  in  1604. 


^^  UNT,  WARD  (born  in  Utica,  New  York,  June  U,  1810;  died  at 
Washington,  District  of  Columbia,  March  25, 1 880),  was  the  son 
of  Montgomery  Hunt,  a  conspicuous  citizen  and  financier  of 
Oneida  county,  lie  was  educated  at  the  local  academy  of  Utica 
and  at  Union  College,  whidi  he  entered  in  his  nineteenth  year,  graduating 
with  honors.  After  leaving  college  he  attended  the  famous  law  school 
of  Judge  Gould  at  Litchlield,  Connecticut,  taking  the  regular  course, 
and  later  continued  his  legal  studies  in  the  office  of  Hiram  Denio  at 
Utica  until  his  admission  to  the  bar  in  1831.  He  immediately  com- 
menced practice  at  Utica,  and,  through  his  father's  connection  with  the 
Bank  of  Utica  and  his  large  circle  of  friends,  he  soon  secured  a  consid- 
erable business.  His  professional  career  was  further  assured  by  his 
admission  as  junior  partner  into  the  law  firm  of  Mr.  Denio,  which  gave 
him  a  more  than  a  respectable  rank  at  the  county  bar,  at  the  time  dis- 
tinguished for  its  eminent  counsel.  His  duties  in  his  early  practice 
combined  both  those  of  attorney  and  advocate,  with  occasional  oppor- 
tunity to  assist  as  counsel.  His  association  with  his  senior,  Mr.  Denio, 
in  the  preparation  of  his  briefs,  fortifying  them  with  citations  and 
references,  was  of  incalculable  advantage.  Thus  rapidly  maturing,  Mr. 
Hunt  at  an  early  age  in  liis  practice  acquired  a  reputation  excelled 
only  by  the  oldest  lawyers  in  the  county.  He  was  engaged  in  the  most 
important  suits  tried  before  the  Supreme  Court  and  the  bench  of  Ap- 
peals at  Albany. 

He  never  took  any  active  interest  in  politics.  His  earliest  associa- 
tions were  with  the  democratic  party,  and  in  1S39  he  served  a  single 
term  in  the  legislature.  Upon  the  formation  of  the  republican  party 
he  became  an  adherent  of  that  organization.  In  1805  he  was  elected 
judge  of  the  Court  of  Appeals  by  a  large  majority  as  the  successor  of 
his  early  instructor  and  long-time  associate  in  practice.  Judge  Denio. 
Two  years  later  he  was  promoted  to  the  office  of  chief -judge  of  that 
court. 

In  1872,  Honorable  Samuel  Nelson  having  resigned  his  place  as 
associate-justice,  a  vacancy  occurred  on  the  Supreme  Bench  of  the 
United  States.  President  Grant  tendered  the  j>lace  to  Chief-Judge 
Hunt.  He  took  his  seat  January  7,  1873,  and  for  six  years  bore  a  part 
in  the  proceedings  of  the  supreme  tribunal  of  the  country.  His  circuit 
court  allotments  during   the  time  were  to  the  2d  circuit,  including 


364  HISTORY    OF   the   BEXCH    AXD   bar   of   new   YORK 

New  York,  Connecticut,  and  Vermont.  Early  in  January,  1879,  Jus- 
tice Hunt  was  stricken  with  paralysis  of  the  right  side  and  for  a  few 
days  his  life  was  despaired  of.  He  slowly  regained  his  health,  but  not 
sufficiently  to  resume  his  judicial  labors.  In  1882  congress  authorized 
his  retirement  on  a  pension.  The  remainder  of  his  years  was  spent 
in  retirement. 


UNT,  AVASHINGTON  (born  in  Windham,  New  York, 
August  5,  1811 ;  died  in  New  York  City,  February  2,  1867), 
was  educated  in  the  common  schools,  and  at  the  early  age  of 
eighteen  engaged  in  the  study  of  the  law,  being  admitted  to  the 
bar  in  183-4,  and  beginning  in  that  year  the  practice  of  his  profession  in 
Lockport.  He  speedily  enjoyed  success,  and  rose  to  political  promi- 
nence. After  serving  as  judge  of  Niagara  county  he  was  sent  to  con- 
gress as  a  whig,  serving  from  1843  to  1849.  In  1850  he  was  elected 
governor  over  Horatio  Seymour,  but  in  1852,  being  a  candidate  for 
re  election,  was  defeated.  He  became  a  democrat  after  the  disorganiza- 
tion of  the  whig  party.  In  1860  he  declined  to  accept  a  nomination 
for  vice-president  on  the  democratic  ticket.  He  was  a  prominent 
"war  democrat."  He  was  an  active  and  earnest  lay  member  of  the 
protestant  episcopal  church. 


jUTCHINS,  WALDO  (born  in  Brooklyn,  Windham  county, 
Connecticut,  September  30,  1822 ;  died  in  New  York  City, 
February  8,  1891),  was  of  Connecticut  ancestry,  his  mother's 
maiden  name  being  Howard.  Both  his  father,  Waldo 
Hutchins,  Senior,  and  his  grandfather  were  physicians.  Mr.  Hutchins 
was  graduated  from  Amherst  College  in  1842,  and  coming  to  New 
York  City  studied  law  with  the  firm  of  John  Slosson  and  Augustus 
Schell,  in  1845  being  admitted  to  the  bar.  In  18r)2  he  became  a  mem- 
ber of  the  firm  and  so  continued  until  his  death,  the  firm  style  chang- 
ing, successively,  from  Schell,  Slosson  &  Hutchins  to  Slosson,  Hutchins 
&  Piatt  and  Hutchins  &  Piatt. 

Mr.  Hutchins  was  prominently  active  in  public  life.  In  1852  he 
was  a  member  of  the  assembly  from  Kings  county,  at  the  age  of 
twenty-nine  becoming  chairman  of  the  judiciary  committee  of  that 
body.  Nominated  a  justice  of  the  Supreme  Court  in  1856,  he  declined. 
He  was  one  of  thirty-two  delegates-ar-large  to  the  constitutional  con- 
vention of  1867.  He  was  a  member  of  the  46th,  47th  and  48th  congresses. 
He  introduced  in  Congress  a  bill  proposing  as  an  amendment  to  the 
constitution  the  requirement  of  a  vote  of  two-thirds  of  all  members  of 
each  house  in  order  to  pass  a  bill  over  the  president's  veto.  But  his 
most  signal  public  services  Avere  undoubtedly  in  connection  with  the 
parks  and  fire  department  of  New  York  City.  Under  the  act  of  1853 
for  the  erection  of  Central  Park  he  was  appointed  a  commissioner,  and 


iii>r(>i;v  »ii'   riiK  iniNt  ii   and  hai:  ok  m;\v  y.)i:k  :?(!."» 

licld  tliis  mii'('iiimu>r:i(i\('  ollicc  for  lui'hc  yr;irs.  "His  ;i(liiiir;il)lf 
ndniinisfnitioii  of  this  trust  was  n  I'dil  iiniil.'  t  liiii;;-  lor  I  liis  cil  \ .  Il  \\:is 
largely  (liic  to  his  vii'-oioiis  |tolicy,  (Iflfrmiiialioii  and  hiuh  pfrsoiial 
(•haractcr  that  the  i)n>vailiii,i;-  corniptioii  of  that  epoch  did  not  touch 
thei)ark."  More  recently  he  was  active  in  connection  with  the  "new 
parks"  in  the  annexed  district,  north  ol"  the  Haileni  river,  presided 
over  the  Hi"st  pnblic  ineetin<^"  on  this  snbject,  and  was  ai)pointed  hy 
Mayor  Kdson  a  member  of  tlie  commission  to  hiy  ont  the  new  i)arks. 
Appointed  a  member  of  tlie  board  of  i)ark  commissioners  of  New  York 
(Mty  in  .June,  1S87,  lie  hehl  this  position  until  his  death,  being  chosen 
president  of  the  board  in  June,  18S0.  Mr.  Ilutchins  also  participated 
prominently  in  the  agitation  resulting  in  the  act  of  March,  1805,  creat- 
ing a  metropolitan  tire  district  and  giving  to  New  York  City  the  first 
paid  lire  service  in  its  history,  ^foreover,  one  of  his  most  imjiortant 
and  interesting  law  cases  was  as  counsel  in  maintaining  the  constitu- 
tionality of  the  act  creating  this  notable  reform. 

As  a  lawyer  Mr.  Ilutchins  enjoyed  a  large  corporation  practice 
and  was  counsel  in  many  cases  of  note. 


|t^w-rY|NGLIS,  WILLIAM  (born,  probably,  in  New  York  City  ;  died 
Rfifilp^  in  Iloboken,  New  Jersey,  about  1863),  was,  it  is  sujiposed,  of 
w^^f^i  Scotch  ancestr^^  He  was  graduated  from  Columbia  College 
in  1821,  and  was  admitted  to  the  bar  in  1826.  For  thirteen 
years,  until  his  elevation  to  the  bench,  he  practiced  law  in  New  York 
City,  holding  a  very  respectable  position  in  the  i)rofession,  although  he 
did  not  become  especially  distinguished.  He  took  an  active  part  in 
whig  politics  at  the  time  of  the  United  States  bank  excitement,  and  it  was 
probably  due  to  that  circumstance  that  he  was  appointed  to  the  bench  of 
the  Common  Pleas  Court  upon  the  creation  of  a  new  judgeship  in  1839. 
He  was  a  highly  popular  trial  judge,  and  when  his  term  expired  at  the 
end  of  five  years,  the  bar,  without  distinction  of  party,  favored  his 
reappointment.  Governor  Bouck,  however,  was  resolved  to  appoint 
none  but  a  democrat,  and  accordingly  selected  Charles  P.  Daly  for  the 
l)lace.  Mr.  Daly  at  first  declined,  but  later  accepted  at  the  personal 
request  of  Judge  Inglis. 


NGRAHAM,  DANIEL  P.  (born  in  New  York  City  in  1800 ;  died 
there,  December  12,  1881),  was  of  Dutch  and  English  descent 
his  ancestors  on  his  father's  side  having  been  engaged  for 
many  years  in  business,  and  those  on  his  mother's  side  having 
been  prominent  in  public  affairs.  When  he  was  twelve  years  of  age 
his  family  removed  to  Harlem,  where  they  possessed  considerable  real 
estate  inherited  from  his  paternal  grandfather,  and  where  he  resided 
until  within  a  few  years  of  his  death.     He  was  educated  at  Columbia 


366  HISTORY    OF   THE   BENCH   AND   BAR   OF   NEW    YORK 

College,  graduating  at  an  early  age,  and  read  law  with  Richard  Riker, 
who  for  twenty  years  was  recorder  of  the  City  of  New  York.  His 
fellow-student  in  the  office  was  Thomas  Brady,  one  of  whose  sons 
subsequently  sat  with  him  on  the  bench  as  an  associate-judge  in  the 
Court  of  Common  Pleas  and  in  the  Supreme  Court.  Upon  coming  of 
age  he  was  admitted  to  the  bar  and  at  once  commenced  practice, 
winning  early  in  his  professional  career  the  respect  and  confidence  of 
all  with  whom  he  came  in  contact  and  acquiring  a  large  and  lucrative 
practice.  Steadily  growing  in  prominence,  he  in  1835  represented  in  the 
board  of  assistant  alderman  the  12tli  ward,  which  then  embraced  a 
large  part  of  the  territory  of  New  York  island,  and  he  was  alderman  of 
of  the  same  ward  during  the  years  1836  and  1837. 

His  judicial  life  began  in  1838,  when  Governor  Marcy  appointed 
him  associate-judge  of  the  Court  of  Common  Pleas  to  fill  the  vacancy 
occasioned  by  the  death  of  Honorable  John  T.  Irving.  In  1850,  on  the 
retirement  of  Judge  Ulshoefler,  he  was  selected  by  his  associates  for 
the  position  of  first  judge,  an  office  which  he  continued  to  hold  so 
long  as  he  remained  a  member  of  the  court.  For  seventeen  of  the 
twenty  years  of  his  judgeship  in  the  Court  of  Common  Pleas  no 
regular  reports  of  the  opinions  of  that  court  were  published,  but  the 
reports  of  Smith  and  Hilton  covering  the  last  three  years  attest  the 
great  labors  performed  by  the  Common  Pleas  judges. 

In  the  fall  of  18.o7  he  was  elected  a  justice  of  the  Supreme  Court, 
taking  his  position  as  a  member  of  that  court  on  the  1st  of  January, 
1858.  He  continued  in  this  position,  much  of  the  time  acting  as  chief- 
justice,  until  1874,  when  his  term  expired  and  he  had  passed  the  con- 
stitutional limit  of  judicial  life.  As  a  judge  of  the  Supreme  Court  his 
opinions  are  reported  in  the  last  forty  volumes  of  Barbour  and  seven 
volumes  of  Lansing,  and  in  Abbott  and  Howard,  as  well  as  in  the 
Court  of  Appeals  reports  for  the  year  1864,  when  he  served  as  a  mem- 
ber of  that  court. 

Judge  Ingraham,  in  his  long  career  on  the  bench,  possessed  uni- 
formly the  highest  confidence  and  respect  of  the  profession  and  the 
public.  His  judicial  abilities  were  of  a  very  superior  order,  and  to 
these  he  added  great  conscientiousness,  dignity  and  courtesy. 


I 


I^^^RVING,  JOHN  TREAT  (born  in  New  York  City,  May  26, 
Kfll^  1778  ;  died  there,  March  15, 1838),  was  an  elder  brother  of 
IP'm^I  Washington  Irving,  the  eminent  man  of  letters.  He  was 
'  graduated  from  Columbia  College  in  1798,  and  took  up  the 

study  of  the  law.  Being  admitted  to  the  bar,  his  natural  ability  and 
his  great  industry  soon  won  for  him  an  important  place  in  the  pro- 
fession. In  1816  and  1817  he  was  a  member  of  the  assembly  of  the 
state,  and  in  1821  he  was  appointed  to  the  bench  of  the  Court  of 
Common  Pleas,  being  the  first  judge  of  that  newly-organized  tribunal. 


iii<i(ti;v  ov   riiK  in;N(  II   and  n.\i:  oi'  nkw  vokk  .U'u 

lli'st'ivcd  :is  Comiii.ni  Ploas  jii(l,<;e  uiilil  his  dnilli  sr\  .■nir.-n  y<':irs. 
ilc  \v:is  a  tiiistc.'  of  ('()Iiini])i!i  CJollci;*'  and  a  vrst  rvinaii  of  'I'riiiily 
('liurcli.  lie  jjosst'sst'd  lit(>rary  ability,  and  in  liis  earlier  years  con- 
tributed to  tlie  coliinins  of  tlie  Cfi roiiirlr,  edited  by  his  brother,  luit  in 
hiter  life  the  claims  of  his  profession  and  his  ollicial  diilir-s  en<r;i(r,.d  his 
exclusive  attention. 

Honorable  Charles  P.  Daly,  in  his  introducticn  to  the  first  of  K.  J). 
Smith's  Keports,  says  of  Judge  Irving: 

As  a  judge  he  was  in  many  respects  a  model  for  imitation.  To  the  strictest 
iiitctrrity  and  a  .strong  love  of  justice  he  united  thcnio.st  exact  and  methodical  liabits 
of  business.     .Vttcnlivc,  careful  and  painstaking,  few  judircs  in  tliis  state  ever  have 


SUNNYSIDE,   WASHINUTON 


iINU  S   KESIDENCE. 


been  more  accurate,  or  perhaps  more  generally  cori-ect  in  then-  decisions.  While 
presiding  at  nisi  prius  he  was  not  what  would  be  termed  a  quick-minded  man,  but 
when  questions  were  argued  before  liim  in  banc  he  bestowed  so  much  care  and  con- 
sidei-ed  each  case  so  attentively  that  his  judgments  were  rarely  revereed,  and  were 
uniformly  treated  by  the  courts  of  revision  with  the  greatest  respect. 

Upon  Ms  death  the  bar  cansed  a  handsome  marble  tablet,  with 
liis  bust  in  relievo,  to  be  placed  in  the  court-room,  with  the  following 
inscription : 

VIRO    •   HOXORATO 

lOANNI    •   T    •   IRVING 

QVEM    •   JVDICIS   •   OFFICIO   •   MVLTOS   "   PER    '   ANNOS    '   FVNCENTEN   ' 

ET  •  LEQTM  •  DOCTRINA  •   ET  '  MORVM  •  INTEGRITAS  •  FELICISSEME   '  CONDECORABAJN-T  " 

IVRISCONSVLTI   •   NEO-EBORACENSES   •   QVIBVS   '   ET  •   AJUCI    "   ET   "  MAGISTRI 

TAM    •   TRISTE   •   RELQVIT    '   DESIDERFVM 

H    •   jM    •   PONENDVM    "   CVRAVERVNT 


1^^^ JAMES,  AMAZIAH  B.  (born  in  Rensselaer  conntv,  New 
ll^M  York,  in  1812;  died  in  Troy,  New  York,  in  July,  1883), 
r^ji^i?  received  an  academic  education  and  was  admitted  to  the 
New  York  bar  in  1838.  He  practiced  law  for  fifteen  years 
in  Ogdensbnrgh.  He  was  elected  a  judge  of  the  Supreme  Court  and 
remained  on  the  bench  twentv-three  vears,  winning  distinction  for 


368  HISTORY   OF   the   bench    and   BAK   of   new   YORK 

courtesy,  fairness,  learning,  and  integrity.  He  resigned  the  jiidgesliip 
in  1876  to  accept  an  election  to  congress.  He  declined  a  re-election 
and  retired  to  private  life. 


^^^^p  AMISOX,  DAVID,  was  one  of  the  early  colonial  practitioners, 
l^^i  living  in  New  York  City.  So  far  as  is  known,  lie  was  a  man 
|(»^^  of  character  and  caj^acity,  although  Governor  Bellomont 
declared  that  lie  had  been  condemned  to  be  hanged  in  Scot- 
land for  blasphemy  and  burning  a  bible.  In  1707  he  was  one  of  the 
counsel  of  Mackamie,  or  Makamie,  a  presbyterian  clergyman,  prose- 
cuted by  Cornbury  for  preaching  without  a  license  at  a  private  house 
in  Newtown  on  his  way  from  New  York  to  Virginia.  Mackamie  was 
held  for  two  months  in  prison.  The  legal  question  at  issue  was  whether 
the  English  act  of  uniformity  operated  in  the  colonies.  Jamison  was 
chief-justice  of  New  Jersey  from  1710  to  1719,  although  still  maintain- 
ing his  residence  in  New  York. 


AY,  JOHN,  first  chief- justice  of  the  state  of  New  York  and 
first  chief-justice  of  the  United  States  (born  in  New  York 
City,  December  12,  1745 ;  died  in  Bedford,  Westchester 
county,  New  York,  May  17,  1829),  was  descended  from 
Huguenot  ancestors.  After  his  graduation  at  King's  College  (now 
Columbia)  in  1766,  he  was,  in  the  same  year,  admitted  to  the  bar. 
His  legal  preceptor  was  Benjamin  Kissam.  He  began  practice  at  the 
age  of  twenty-one,  and  in  ten  years  established  a  reputation  for  ability 
which  was  the  foundation  of  a  career  of  uninterrupted  distinction. 
He  was  one  of  the  foremost  men  of  New  York  in  the  manifestations 
which  preceded  the  American  Revolution.  He  participated  in  the 
formal  organizations  of  the  patriotic  citizens  of  New  York,  and  the 
authorship  of  the  recommendation  of  a  committee  of  New  Yorkers, 
that  "  a  congress  of  deputies  from  all  the  colonies  in  general "  be  held, 
is  ascribed  to  him.  He  was  a  delegate  to  the  early  general  congresses 
at  Philadelphia,  and  one  of  the  leading  members  of  those  bodies,  being 
the  author  of  the  "  Address  to  the  People  of  Great  Britain "  (which 
Jefferson  praised  in  the  highest  terms)  and  of  the  "  Address  to  the 
People  of  Canada  and  of  Ireland'';  and  he  was  one  of  the  secret  com- 
mittee appointed  by  congress  in  November,  1775,  "  to  correspond  with 
the  friends  of  America  in  Great  'Britain,  Ireland,  and  other  parts  of  the 
world."  During  his  attendance  at  Philadelphia  he  had  been  chosen  a 
delegate  to  the  New  York  provincial  convention,  and  at  the  request  of 
that  body  (then  in  session  at  White  Plains)  he  went  to  participate  in 
its  deliberations.  It  was  on  his  motion  that  the  declaration  of  inde- 
pendence was  unanimously  approved  by  the  New  York  convention, 
and  he  was  very  conspicuous  in  its  subsequent  transactions,  being  the 


y0m  /a^, 


IIISl(»i:V    OK   'IIIK    UKNCII    AM)    H.Vi:    oF    NKW    V 


•Am 


cliict'  aiitlioi-  of  th«>  st;it(^  constifntioii  wliicli  it  ndoptnl  (Ai)iil  :2(),  1777;. 
Ivirly  in  May,  1777,  tlu'  state  /jovt'iniiHMit  a<;i(M'(l  upon  was  oi-^anizcd 
and  established,  and  Afr.  .lay  was  chosen  chief-justice,  his  competitor 
l)(>in,ii-  (reneral  Scott.  He  lu'hl  his  first  term  as  cliief-justice  of  tlie  state 
on  September  0  foHowinii:,  at  Kiu'^ston.  He  also,  at  this  time,  sei-vcd 
as  a  member  of  the  council  of  safety,  which,  under  its  authority  to  direct 
the  military  occupation  of  the  state,  exercised  arbitrjiry  jjowera. 

The  duties  of  Jay  in  the  chief-justiceshij)  of  the  Supreme  Court  of 
New  York  were  soon  interrupted  by  the  demands  of  his  country's  ser- 
vice. Bein^  sent  to  congress  in  the  s})ecial  emergency  occasioned  by 
the  erection  of  the  State  of  Vermont  as  a  commonwealth  distinct  from 
tlie  State  of  New  York,  he  was  chosen  president  of  that  body  (Decem- 
ber 1,  1779).  He  continued  in  that  capacity  for  nearly  a  year,  when, 
September  27,  1770,  he  was  appointed  minister  to  Spain.  In  this  office 
he  remained  until  after  the  conclusion  of 
peace.  He  served  with  John  Adams  and 
Benjamin  Franklin  as  one  of  the  peace 
connuissioners  of  the  United  States,  being 
appointed  at  Franklin's  request  by  con- 
gress, June  23, 1782.  His  contributions  to 
the  diplomacy  of  the  peace  commissioners 
were  of  the  greatest  value;  from  the  be- 
ginning he  intelligently  and  firmly  re- 
sisted all  the  secret  endeavors  of  the 
French  government  to  limit  the  territorial 
bounds  of  the  nation  at  the  west,  and  the 
most  advantageous  terms  of  the  resulting 
treaty  were  in  a  peculiar  manner  his  per- 
sonal triumph. 

In  July,  1781,  he  returned  to  the 
United  States  to  assume  the  duties  of  secretary  of  foreign  affairs,  the 
chief  executive  position  then  existing,  to  which  he  had  been  appointed 
by  congress — an  office  which  he  retained  until  the  end  of  the  provi- 
sional regime.  It  was  largely  by  his  influence  that  the  State  of  New 
York  was  persuaded  to  give  its  assent  to  the  federal  constitution. 

When  the  national  government  was  organized  under  President 
"Washington,  Jay  was  requested  by  the  i^resident  to  choose  for  himself 
the  position  most  acceptable  to  him.  He  thereupon  selected  the  office 
of  chief-justice  of  the  Supreme  Court.  In  accepting  the  chief-justice- 
ship he  resigned  the  honorable  i)liice  of  president  of  the  abolition 
society,  which  he  had  previously  held.  As  chief-justice  of  the  United 
States,  he  was  the  incarnation  of  honor  and  dignity.  In  the  familiar 
words  of  Daniel  Webster,  "  When  the  spotless  ermine  of  the  judicial 
robe  fell  on  John  Jay,  it  touched  nothing  less  spotless  than  itself." 
But  he  was  not  permitted  to  remain  in  the  placid  enjoyment  of  his 
great  judicial  station.    In  1792  he  was  a  candidate  for  governor  of 


AUTOGRAPHS  OF  AMERICAN  PEACE 
COJIMISSIO.NERS. 


370 


HISTORY  OF  THE  BENCH  AND  BAR  OF  XEW  YORK 


K'ew  York  against  George  Clinton,  but  he  was  defeated  by  the  throw- 
ing out  of  votes  on  technical  gi'ounds.  In  1794  he  was  sent  by  AVash- 
ington  as  a  special  envoy  to  England,  and  the  result  of  this  mission 
was  the  negotiation  of  the  celebrated  "  Jay's  Treaty."  Upon  his  return 
to  the  United  States  he  assumed  the  office  of  governor  of  New  York, 
to  which  he  had  been  chosen  in  his  absence,  and  he  Avas  re-elected  in 
1798.  Retiring  from  the  governorship  in  1801,  he  was  reappointed 
chief-justice  by  President  John  Adams,  but  he  declined  that  honor  and 
retired  to  private  citizenship. 

There  can  be  no  doubt  of  the  greatness  of  Jay  as  a  judge.  The 
case  of  Chisolm  vs.  Georgia,  in  2  Dallas,  415,  is  a  signal  illustration. 
It  involved  the  question  whether  a  state  could  be  sued.  Jay's  opinion 
in  this  case  made  the  Supreme  Court  the  final  interpreter  of  the  con- 
stitution.    It  originated  the  logic  and  the  methods  of  reason  which 

Marshall  em- 
ployed afterward 
in  upholding  fed- 
eral authority. 
Touching  this  de- 
c  i  s  i  o  n ,  Judge 
Cooley  has  said : 

After  this  clear 
a  11  d  authoritative 
declaration  of  na- 
tional supremacy 
the  power  of  a  court 
to  summon  a  state 
before  it,  at  the  suit 
of    an     individual, 


GOLD  SNUFF-BOX   OF  JOHN  JAT. 


niioht  be  taken 
by  the  amendment  of  the  constitution — as  was  in  fact  done — without  impair- 
ing: the  general  symmetry  of  tlie  federal  structure,  or  inflicting-  upon  it  irremediable 
injury.  The  union  could  scarcely  have  had  a  valuable  existence  had  it  been  judi- 
cially determined  that  powers  of  sovereignty  were  exclusively  in  the  states  or  in  the 
people  of  the  states  severally.  The  doctrine  of  an  indissoluble  union,  though  not 
in  terms  declared,  is  nevertheless,  in  its  elements  at  least,  contained  in  the  decision. 
....  It  must  logically  follow  that  a  nation,  as  a  sovereignty,  is  possessed  of  all 
those  powers  of  independent  action  and  self-protection  which  the  successors  of  Jay 
subsequently  demonstrated  were  by  implication  conferred  upon  it. 


In  a  charge  to  a  grand  jury  at  Richmond,  in  1783,  Jay  took  the 
ground  that  violations  of  the  neutrality  proclanuitions  of  the  federal 
executive  were  indictable  at  common  law ;  that  international  law  is 
a  part  of  the  common  law  binding  upon  the  states.  In  this  posi- 
tion he  has  been  since  sustained  by  the  decisions  of  the  Supreme 
Court.  Story  had  a  very  high  ojnnion  of  Jay  as  a  lawyer,  and  once 
wrote  that  he  was  "  equally  distinguished  as  a  revolutionary  statesman 
and  a  general  jurist." 


iiisror.v 


IIK    lii;.N(ll     AM)    ISAI 


:!71 


\Y,  .lOllN  iboru  in 
of  .lu.l-v  William 
Colmiibia  College  in 


New  V 
Jay   <q 


Dik  City, 

.  \M.       lie   was   ^nulnalrd 

md  admitted  to  the  har  in 


.Iiine  2:i,  1817), 
'   was   ^ladnali 


Ironi 
l.s:{'.t. 
rand 
.      In 


Inheriting  the  anti-slavery  creed  of  liis  fatlier  and  <^ 
father,  he  devoted  liinis(>If  eiier^M^tically  to  this  icfoiiii  inoveiiiciit 
his  profession  he  made  himself  con- 
spicnons  by  his  advocacy  of  the  cause  of 
fugitive  shives,  appearing  as  counsel  in 
behalf  of  tlie  Lemmon  shives,  Henry 
Long,  George  Kirk,  and  two  Brazilian 
slaves  who  were  landed  in  New  York. 
He  waged  a  prolonged  contest — which 
was  finally  successful — to  procure  the 
admission  of  Saint  Philip's  colored 
church  to  the  protestant  episcopal  con- 
vention. He  took  part  in  the  original 
organization  of  the  republican  party  in 
tlie  State  of  New  York.  lie  was  ap- 
pointed minister  to  Austria  in  18(59  and 
served  until  1875,  wlien  he  resigned.  He 
was  president  of  the  Union  League  Club 
in  1806  and  1877,  state  commissioner  for 
Antietam  cemetery  in  18(58,  chairman  of 
the  commission  to  investigate  the  New^ 
York  custom  house  in  1877,  a  member 

of  the  state  civil  service  commission  (by  the  appointment  of  Governor 
Cleveland)  from  1883,  first  president  of  the  Huguenot  Society  (organ- 
ized in  1800),  and  has  been  prominently  connected  with  the  New  Y^'ork 
Historical  Society.  He  is  the  author  of  numerous  addresses  and  pam- 
phlets. 


f 


I^^^IAY,  PETER  AUGUSTUS  (born  in  Elizabethtown,  New  Jer- 
IWM  ^*'-^'  -^'^"^^^^T  -^'  1^"^  '  <1*^^  i°^  ^^^^'  Y^ork  City,  February  20 
l^a^irl  '''^^)'  tlie  eldest  son  of  John  Jay,  the  elder,  was  graduated 
'  from  Columbia  College  in  ITOi.  He  accompanied  his  fatlier 
as  his  secretary,  on  his  mission  to  England  in  that  year,  and  after  his 
return  engaged  in  legal  studies  and  was  admitted  to  the  New  Y'ork 
bar.  He  gained  distinction  as  a  lawyer  and  also  was  a  man  of  mark 
in  political  and  legislative  affairs.  He  gave  valuable  assistance  in  pro- 
moting the  construction  of  the  Erie  canal,  and  was  prominent  with  his 
brother  William  in  the  movement  for  abolishing  slavery  in  this  state. 
He  was  recorder  of  New  Y'ork  City  from  IS  19  to  1821,  a  delegate  to 
the  constitutional  convention  of  1S21,  a  trustee  of  Columbia  College 
president  of  the  New  Y^ork  Historical  Society,  and  a  cordial  friend  of 
charitable  enterprises.     He  was  a  member  of  the  Kent  club,  in  which 


372  HISTOKY   OF   THE   BENCH   AND   BAR   OF   NEW   YOKK 

some  of  the  leading  lawyers  of  the  city  were  afnliated,  was  a  man  of 
/arge  general  as  well  as  juristic  learning,  and  jjossessed  a  character  of 
high  moral  purity. 


I^^^AY,  WILLIAM  (born  in  New  York  City,  June  16, 1TS9  ;  died 
1^^     in  Bedford,  New  York,  October  14,  1858),  was  the  second  son 

■■  ^?*^)H   ^^  Jo^n  Jay  the  elder.     He  was  privately  instructed  in  the 
'  classics  by  an  English  scholar,  and  later  attended  Yale  Col- 

lege, graduating  in  1808.  He  studied  for  the  law  at  Albany  under 
John  B.  Henry,  but  in  consequence  of  an  affection  of  the  eyes  did  not 
long  pursue  the  profession.  lie  acquired,  however,  an  excellent  legal 
equipment,  which  fitted  him  for  the  long-continued  and  excellent  ser- 
vices which  he  afterward  rendered  on  the  bench.  He  was  appointed  in 
1818  by  Governor  De  Witt  Clinton  judge  of  Westchester  county,  and 
although  that  office  was  vacated  for  a  time  after  the  constitution  of 
1821  came  into  effect,  he  was  later  reappointed  and  continued  to  oc- 
cupy it  until  1843,  when  he  was  removed  by  Governor  Bouck  because 
— as  was  alleged  -of  his  decided  anti-slavery  principles. 

He  early  took  a  keen  interest  in  the  slavery  question,  and  through- 
out his  life  was  very  conspicuous  as  a  writer  and  sp?aker  in  behalf  of 
the  anti-slavery  cause.  He  did  not,  however,  take  extremist  views  on 
the  constitutional  issues  involved,  and  while  maintaining  that  congress 
had  authority  to  suppress  the  domestic  slave  trade  and  to  abolish  slav- 
ery in  the  territories  under  its  exclusive  jurisdiction,  he  did  not  agree 
with  those  who  wished  it  to  interfere  with  this  institution  in  the  states. 
/^  He  rendered  able  assistance  in  the  advocacy 

A/OxX^UPl/nx.  %/oc^^    of  free  speech,  and  while  on  the  bench  de- 
/  iivered  a  notable  charge  to  the  grand  jury, 

advising  them  that  any  law  passed  to  abridge  in  the  least  the  freedom 
of  speech  or  the  liberty  of  the  press  was  necessarily  null  and  void.  He 
discussed  with  great  ability  certain  legal  principles  involved  in  phases 
of  the  slavery  discussion — notably  the  doctrine  announced  by  a  Con- 
necticut court  in  the  Prudence  Crandall  case,  that  persons  of  color  could 
not  be  citizens.  His  writings  on  slavery  were  voluminous,  widely  circu- 
lated, and  did  much  to  mould  public  opinion.  He  also  was  ardently 
devoted  to  the  cause  of  international  arbitration  as  a  substitute  for  war 
being  one  of  the  pioneers  in  that  cause.  He  was  president  of  the  Ameri- 
can Peace  Society,  attended  peace  congresses  abroad,  and  wrote  a  num- 
ber of  notable  pamphlets  on  the  subject.  He  published  in  1833  a  work 
entitled  "The  Life  and  Writings  of  John  Jay,"  which  for  the  first 
time  disclosed  the  actual  services  of  that  statesman  in  the  peace  nego- 
tiations of  1782-83.  He  was  appointed  in  1833  by  President  Jackson 
a  commissioner  to  adjust  all  unsettled  matters  with  the  western  In- 
dians, but  declined.  He  was  an  intimate  friend  from  boyhood  of  James 
Fenimore  Cooper. 


insToKY  OF  TiiK  in:.\(ii  and  hak  (ik  m;\\    voiik  :{7:{ 

KNKS.  aRKN\ILI.K  T.  il.oni  in  n..st<.ii  in  1839;  died  in 
Saratoira,  New  York,  August  II,  l.sTO),  was  a  ncpliew  of 
>V»'ii(l('ll  riiillips.  He  was  yradiialcd  Ironi  tlif  liuversity 
of  ^'o\v  York  and  entered  (lie  law  ollieeof  L<)tt,Mnri)li y  &  Van- 
derberf?.  Beini?  admitted  to  the  bar,  he  became  a  member  of  the  liiin  of 
IMcM'son,  Tlyde  &  .lenks,  and  npon  its  dissolution  ()r<;anized  the  lirm  of 
.It'uks  i*c  Ward.  He  was  a  hiiihly  effective  jury  advocate,  and  his  early 
death  was  greatly  dei)lored.     lie  lived  in  Brooklyn. 


fEWETT,  FKEEBORX  G.  (born  in  Connecticut  in  1791  ;  died 
in  New  York  in  1858),  was  the  first  chief-judge  of  the  Court 
of  Appeals  chosen  under  the  constitution  of  1846.  He  had  a 
common  school  education,  and  after  his  admission  to  the 
bar  was  prominent  in  politics  and  in  law.  lie  Avas  inspector  of  state 
prisons,  county  judge,  circuit  judge,  a  member  of  the  assembly  and 
member  of  congress.  lie  resigned  from  the  Court  of  Appeals  in  1853. 
The  opinions  he  delivered  while  on  the  bench  show^  him  to  have  been  a 
judge  of  the  clearest  intellect,  and  his  opinions  construing  the  code  of 
civil  procedure  are  especially  lucid  and  are  constantly  cited  as  prece- 
dents in  other  code  states. 


P^^IOIIXSON,  ALEXANDER  S.  (born  in  Utica,  July   30,  1817; 

4^^     died  in   Nassau,  Bahama  islands,  January   26,  1878),   went 

•  E»r    through  a  course  of  study  at  Y'ale  College,  and  was  admitted 

to  the  bar  when  twenty-one   years   old.      He  practiced  in 

Utica  and  New  Y'ork  City.  He  was  elected  justice  of  the  Supreme 
Court  at  the  first  election  under  the  constitution  of  18-16.  In  1851  he 
was  elected  to  the  Court  of  Appeals.  This  i)osition  he  held  for  nine 
years.  In  I860  he  returned  to  Utica  and  resumed  the  practice  of  the  law. 
President  Lincoln,  in  Jn\x,  1864,  appointed  him  United  States  commis- 
sioner for  the  settlement,  under  the  treaty  with  Great  Britain,  of 
the  Hudson  Bay  and  Puget  Sound  companies'  claims.  The  duties  of 
this  office  employed  him  for  about  three  years.  In  January,  1873,  he 
was  appointed  to  the  bench  of  the  Commission  of  Appeals,  and  in 
December  of  the  same  year  he  was  promoted  to  the  Court  of  Appeals. 
Subsequently  he  was  appointed  commissioner  to  revise  the  statutes  of 
New  Y'ork,  which  position  he  resigned  to  accept  the  appointment  of 
United  States  circuit  judge  for  the  2d  judicial  district.  He  was  a 
regent  of  the  New  Y^ork  University.     His  rank  as  a  jurist  is  high.    His 


374  HISTORY   OF  THE   BENCH   AND   BAR   OF  NEW   YORK 

OHNSON,  THOMAS  A.  (died  at  Corning,  New  York,  Decem- 
ber 5,  1872),  had  at  the  time  of  his  death  been  in  continuous 
service  for  twenty-five  years  as  a  Supreme  Court  Justice. 
He  was  elected  to  the  supreme  bench  of  the  7th  judicial 

district  in  1847,  and  re-elected  at  each  successive  expiration  of  his  term. 

In  1864  he  sat  as  a  member  of  the  Court  of  Appeals.     Shortly  before 

his  death,  in  1870,  he  was  appointed  by  Governor  Hoffman  one  of  the 

general  term  justices  for  the  4th  department. 


OHNSON,  WILLIAM  (born  in  Middletown,  Connecticut, 
about  1770;  died  in  New  York  City  in  July,  1848),  was 
graduated  at  Yale  College  in  1788,  and  after  admission  to 
the  bar  engaged  in  legal  practice.  As  the  compiler  of 
"  Johnson's  Reports,"  his  name  and  work  are  familiar  to  every  New 
York  lawyer.  He  published  "  New  York  Supreme  Court  Reports, 
1799-1803,"  "New  York  Chancery  Reports,  1814-23,"  "Digest  of 
Cases  in  the  Supreme  Court  of  New  York,"  and  also  a  translation  of 
D.  A.  Azuni's  "■  8i sterna  Universale  del  principli  del  diriito  maritimo 
delV  EuropaP  He  was  Supreme  Court  reporter  from  1806  to  1823,  and 
reported  for  the  Court  of  Chancery  from  1814  to  1823.  It  is  the 
unanimous  testimony  of  his  legal  contemporaries  that  he  was  a  man  of 
very  excellent  attainments  and  high  character.  The  "  Commentaries  " 
of  Chancellor  Kent  are  dedicated  to  him.  According  to  William  A. 
Duer,  he  was  "  a  man  of  pure  and  elevated  character,  an  able  lawyer,  a 
classical  scholar,  a  gentleman  and  a  Christian."  And  Judge  Story  has 
paid  him  this  handsome  compliment :  "  No  lawyer  can  ever  express 
a  better  wish  for  his  country's  jurisprudence  than  that  it  may  possess 
such  a  chancellor  [Kent]  and  such  a  reporter  [Johnson.]  " 


ONES,  DAVID  (born  in  Fort  Neck,  Long  Island,  September 
16,  1699  ;  died  there,  October  11,  1775),  was  a  son  of  Thomas 
Jones,  one  of  the  early  settlers  of  Long  Island.'  He  enjoyed 
educational  advantages  exceptional  for  those  times,  and 
chose  the  profession  of  the  law.  He  pursued  this  calling  in  the  City 
of  New  York,  being  one  of  the  leading  members  of  the  bar  of  the 
period.  In  1734  he  received  the  appointment  of  judge  of  Queens 
county,  and  he  was  a  judge  of  the  colonial  Supreme  Court  for  fifteen 
years  from  1758.  Previously  to  his  elevation  to  the  Supreme  Court 
bench  he  had  been  speaker  of  the  assembly  thirteen  years. 

'  Thomas  Jones,  the  father  of  David,  came  from  a  daughter  of  Thomas  Townsend,  acquired  by  that  union 

Welsh  family.    He  was  a  partisan  of  James  II.  in  the  and  by  purchases  from  the  Indians  a  very  large  landed 

English  dynastic  revolution,  fought  in  the  battle  of  the  estate.    He  was  captain  of  the  Queens  county  militia, 

Boyne,  Hed  to  France,  and  from  there  sailed  in  1092  high  sheriff  of  the  county,  major  of  the  Queens  county 

under  a  letter  of  marque.     In  the  same  year  he  came  to  regiment,  and  "  ranger-general  of  the  island  of  Nassau," 

Long    Island,     and,    marrying     Freelove    Townsend.  as  Long  Island  was  then  called. 


IIISIOIJV    OK     IIIK    ItKNCll     AM)    I!  A  K    »)F    NKW    VoUK  'MT} 

The  circmnstances  of  the  appointnicnt  of  David  Jones  to  the  Su- 
preme Court  beiu'li  are  of  much  h)cal  historic  inl<'rest.  Tlie  court  at 
tliat  time  consisted  of  a  chief-justice,  I)e  IjJincey,  and  two  puisne  judges, 
Chambers  and  Ilorsmamh'ii.  A  case  arose  in  wliich  tlu;  tith*  to  hinds 
claimed  by  Trinity  church  was  involved,  and  as  both  Chambeis  ami 
llorsmanden  were  trustees  or  vestrymen  of  Trinity,  (Jhief-.Iustice  Dti 
Lancey  having  temporarily  susiHMided  his  judicial  functions  to  per- 
form the  duties  of  acting-governor,  it  became  necessary  to  ai)i)oint  a 
third  i)uisne  judge.  Jones  was  selected,  and  in  November,  ]7()0,  he 
tritnl  the  case  of  Brower  vs.  Trinity  Cliurch,  the  first  of  the  famous 
contests  by  the  Amieke  Jans  lieirs.  Judge  Jones,  though  of  the  epis- 
copalian denomination,  gave  the  suit  a  careful  and  impartial  trial.  He 
resigned  in  the  fall  of  1778,  owing  to  the  infirmities  of  age.  Through- 
out his  life  he  was  attached  to  the  episcopalian  or  high  tory  party. 


fONES,  DAVID  S.  (born  in  Westneck,  Long  Island,  November 
8,  1777;  died  in  New  York  City,  May  10,  184:8),  a  son  of 
Samuel  Jones  the  elder  (q.  v.),  was  graduated  in  1796  at 
Columbia  College  with  the  first  honors,  and  soon  after  was 
appointed  by  Governor  John  Jay  as  his  private  secretary.  For  a 
number  of  years  he  was  first  judge  of  Queens  county.  He  was  three 
times  married,  becoming  allied  successively  to  the  Livingston,  Le  Roy 
and  Clinton  families.  Kemoving  from  his  Long  Island  estate,  at  Mas- 
sepaqua,  to  New  York  City,  he  took  his  place  in  the  front  rank  of  the 
profession,  and  remained  until  his  death  one  of  its  most  conspicuous 
lawyers,  being  also  an  active  citizen.  He  was  prominently  identified 
with  the  interests  of  some  of  New  York's  leading  institutions — 
Columbia  College,  the  Society  Library,  the  General  Theological  Semi- 
nary, and  others. 


ONES,  SAMUEL  (born  July  2G,  1734  ;  died  in  Westneck,  Long 
Island,  November  21,  1819),  was  a  grandson  of  the  first 
Thomas  Jones  (see  David  Jones,  footnote),  a  nephew  of 
Judge  Thomas  Jones  (q.  v.)  and  a  son  of  William  Jones,  a 
respectable  lawyer  of  the  early  colonial  bar.  His  legal  preceptor  was 
the  New  York  chief-justice  and  historian,  William  Sndth  the  younger. 
Although  attached  to  the  crown  sympathetically  during  the  Revolu- 
tion, and  remaining  inside  the  British  lines,  he  was  not  a  participant 
in  the  war,  and  upon  the  establishment  of  peace  he  accepted  the  new 
order  of  things,  becoming  one  of  the  foremost  of  New  York  lawyers 
and  jurists  and  a  prominent  and  valuable  man  in  public  life. 

He  served  in  the  assembly  from  1786  to  1790,  and  in  the  state 
senate  from  1791  to  1799,  and  he  was  conspicuous  in  the  national 
constitutional  convention,  taking  in  that  body  a  decided  federalist 


376 


HISTORY   OF   THE  BEXCII   AND   BAR   OF   NEW   YORK 


attitude.  His  name  is  especially  memorable  in  the  annals  of  the 
New  York  bar  because  of  his  connection  with  the  first  revision  of 
the  statutes  of  the  state.  He  was  appointed  with  Richard  Varick  in 
1789  to  perform  this  important  duty,  and  the  resulting  revision  was 

mainly  his  work.  For  eight  years 
from  17S9  he  occupied  the  office  of 
recorder  of  New  York  City,  and  from 
1796  to  1799  he  was  comptroller  of  the 
state,  not  only  being  the  first  to  hold 
that  position,  but  having  prepared 
the  act  under  which  the  comptrol- 
ler's office  was  organized.  He  was 
succeeded  as  comptroller  by  James 
Kent  (afterward  chancellor),  who  has 
left  a  very  high  tribute  to  Mr.  Jones' 
attainments.  "  No  one,"  says  Chan- 
cellor Kent,  "  surpassed  him  in  clear- 
ness of  intellect  and  in  moderation 
and  simplicity  of  character  ;  no  one 
equalled  him  in  his  accurate  knowl- 
edge of  the  technical  rules  and  doc- 
trines of  real  property,  and  his  famil- 
iarity with  the  skillful  and  elaborate, 
but  now  obsolete  and  mysterious,  black-letter  learning  of  the  common 
law,"  According  to  Doctor  David  Hosack,  "common  consent  has 
assigned  him  the  highest  attainments  in  Jurisprudence,  and  the  appel- 
lation of  father  of  the  New  York  bar." 


I  ONES,  SAMUEL  (born  May  26,  1769  ;  died  in  Cold  Spring, 

I II    New  Y'ork,  August  9,  1853),  the  second  son  of  the  preceding, 

was  graduated  at  Columbia  College  in  1790.    He  obtained 

his  legal  education  in  the  office  of  his  father,  where  De  Witt 

Clinton  was  at  the  same  time  a  law  student.    As  a  practitioner  and 

jurist  he  was  scarcely  less  eminent  than  the  senior  Samuel  Jones.     He 

^  held  the  offices  of  assemblyman  (1812-14),  recorder 

df-J^r^^^^^f'^-^'^    of    the    City   of    New    Y^ork    (1823),    chancellor 

^  (1826-28),  chief-justice  of   the  Superior  Court  of 

the  City  of  New  Y^'ork  (1828-47)  and  justice  of  the  Supreme  Court  of 

the  state  (1847-49).     He  lived  to  the  advanced  age  of  eighty-six,  and 

although  he  had  completed  his  eightieth  year  upon  his  retirement  as  a 

Supreme  Court  justice,  he  returned  to  the  practice  of  his  profession 

and  continued  therein  until  two  months  before  his  death. 


IIIS'IOKY    OK     IIIK    HKNCII     AM)    MAK    (»I'    NKW     VoKK 


:{■; 


ONES,  SAMUEL  (horn  in  February,  lH2-> ;  .li-d  in  roii^r),. 
kcepsie,  New  York,  Au<i;iist  11,  ls!>2),  a  son  of  tlit-  ]»rt'c»'(liii;:, 
was  <i:ra(luat«Hl  at  ('oliiiiihia  (Joilc^e  in  18+;"),  and  iinnu'diatcly 
arterward  coniiuenced  the  study  of  law  in  the  oflic(!  ol'  Daniel 
Lord.  He  was  admitted  to  the  bar  in  1847,  and  entered  ui)ou  le<r;d 
practice  in  New  York  City.  He  was  one  of  the  first  members  of  tlie 
Association  of  the  Bar,  and  for  six  years  was  a  jnd^«*  of  the  Ntnv  Y'ork 
City  Superior  Court  (18(5(5-72).  Afterward  he  accepted  an  appoint- 
ment as  reporter  of  that  court,  and  with  ex-Judge  James  C  Spencer 
edited  twenty-seven  volumes  of  reports. 


|()NES,  SAMUEL  AVILLIAM  (born  in  Cold  Spring,  New 
York,  July  (5,  1791  ;  died  in  New  Y^ork  City,  December  1, 
18r)r)\  a  grandson  of  the  elder  Samuel  Jones,  was  graduated 
at  Union  College  in  1810,  and  was  a  law  student  in  the  office  of 
his  uncle,  Samuel,  the  younger.  Engaging  in  professional  business  in 
Schenectady,  New  York,  he  became  mayor  of  that  city  and  afterward 
surrogate  and  first  judge  of  the  county. 


ONES,  THOMAS  (born  in  Fort  Neck,  Long  Island,  April  30, 
1731  ;  died  in  Hoddestown,  Hertfordshire,  England,  July  25, 
1792),  was  a  son  of  David  Jones  (q.  v.).  He  received  a 
collegiate  education,  being  graduated  from  Yale  in  1750,  and 
in  1755  was  licensed  to  practice  law  in  New  Y'ork  City,  soon  rising  to 
prominence.  In  the  course  of  his  professional  career  at  the  city  bar  he 
was  the  attorney  many  years  for  the  governors  of  King's  College  (now 
Columbia),  and  he  also  was  attorney  for  the  corporation.  He  became 
clerk  of  the  Queen's  county  Court  of  Common  Pleas  in  1757,  and  from 
1769  to  1773  was  recorder  of  the  City  of  New  Y'"ork,  succeeding  in  that 
office  Simon  Johnson,  who  had  held  it  for  ^ 
twenty-two  years.     He  retired  from  the  re-       H/f/t /a^  j 

cordershij)  to  take  the  seat  of  his  father  on     if ''^^^"  ^   /^(fPl 
the  bench  of   the  colonial   Supreme  Court  /y 

(October,  1773).    He  was  one  of  the  last  crown  l/ 

judges,  holding  at  White  Plains  in  April,  1776,  the  last  court  under  the 
British  regime,  although  he  retained  his  office  until  the  end  of  the  war. 
His  personal  sympathies,  family  connections  and  other  associa- 
tions all  caused  him  to  espouse  the  loyalist  side  during  the  Revolu- 
tion. He  was  allied  to  the  aristocratic  De  Lancey  family,  having  married 
Anne,  a  daughter  of  the  chief-justice.  He  maintained  two  handsome 
residences,  one  facing  the  Great  South  bay,  built  for  him  by  his  father 
and  the  other,  named  '•  Mount  Pitt,"  erected  by  himself  on  his  wife's 
property  between  the  Bowery  and  the  East  river.  In  June,  1776,  he 
was  summoned  by  a  committee  of  the  New  Y'ork  provincial  congress 


378       HISTORY  OF  the  bench  and  bar  of  new  YORK 

to  appear  and  show  why  he  "  should  be  considered  a  friend  of  the 
American  cause,"  and,  refusing  to  obey,  was  placed  undei  arrest,  taken 
to  New  York  City,  and  there  released  on  giving  his  parole  to  appear 
at  the  command  of  congress.  Subsequently,  on  the  ground  that  the 
parole  was  null,  he  was  removed  to  Connecticut,  but  was  discharged 
on  a  second  parole.  Again  he  was  arrested,  notwithstanding  his 
parole,  and  sent  to  Connecticut,  where  he  was  exchanged  for  General 
Selleck  Silliman,  his  old  personal  friend.  This  was  in  1780.  The  next 
year,  in  March,  he  sailed  for  England.  He  spent  the  rest  of  his  life 
there,  being  attainted  of  treason  in  New  York,  and  his  estates  being 
confiscated  ;  but  his  Great  South  bay  property,  with  its  historic  house, 
has  ever  since  remained  in  the  family  of  his  daughter,  Arabella,  who 
married  Richard  Floyd. 

Judge  Jones  wrote  a  "  History  of  New  York  during  the  Revolu- 
tionary War,"  from  the  loyalist  standpoint,  which,  edited  by  his 
descendant,  Edward  Floyd  De  Lancey,  was  reprinted  for  the  New 
York  Historical  Society  in  1879. 


ORDAN,  AMBROSE  LATTING  (born  in  Hillsdale,  Columbia 
county.  New  York,  May  5,  1789  ;  died  in  New  York  City, 
July  16, 1865),  spent  his  early  boyhood  on  a  farm,  and  was 
self-educated.  At  the  age  of  eighteen  he  entered  a  law  office 
in  Albany,  and  in  1812  he  was  admitted  to  the  bar.  He  commenced 
practice  at  Cooperstown,  New  York,  and  became  district-attorney  and 
surrogate  of  Oswego  county.  In  1820  he  removed  to  Hudson,  and  the 
next  year  he  was  made  recorder  of  that  place  and  presiding-judge  of 
the  Mayor's  Court.  He  gained  much  reputation  in  1826  by  his  suc- 
cessful prosecution  of  a  student  of  Kinderhook  Academy  for  the 
murder  of  a  farmer's  son  in  a  street  brawl,  the  lawyers  opposed  to  him 
being  Thomas  J.  Oakley,  Benjamin  F.  Butler  and  Campbell  Bushnell. 
For  twelve  years  more  he  continued  to  practice  at  Hudson,  being  one 
of  the  best  known  attorneys  at  the  Columbia,  Ulster,  Greene,  Dutchess 
and  Westchester  circuits.  In  1838  he  won  for  his  client  the  first  breach- 
of-promise  suit  in  which  a  lady  was  the  defendant.  Henry  R.  Storrs 
was  the  opposing  counsel  in  this  case.  Soon  afterward  he  went  to 
New  York  City,  where  he  spent  the  remainder  of  his  active  life  in  very 
successful  practice. 

Mr.  Jordan  in  the  early  part  of  his  professional  career  took  some 
interest  in  politics.  He  represented  Columbia  county  in  the  assembly 
in  1825,  and  he  was  a  member  of  the  senate  from  1826  to  1829.  The 
senate  at  that  period  constituted  the  Court  of  Errors,  and  was  the 
court  of  last  resort.  Mr.  Jordan's  opinions  as  one  of  its  judges  are 
recorded  in  8  Cowen,  589,  623.  He  was  a  delegate  to  the  constitutional 
convention  of  IS-lt)  and  attorney-general  of  the  state  in  1847,  being  tlie 
first  to  hold  that  office  by  popular  election. 


IIIsrollY    OK 


K    MKNCII     AM 


ItAl 


•  K    M-.\V     V(»I:K 


■M'.) 


|I\XT,  .1 AMKS  (born  in  IMiiliiJpi,  Puliiani  couiily,  New  York, 
.liily  ."H,  17(i;{;  died  in  New  York  City,  December  12,  1S47), 
i:inks  probably  as  the  very  first  of  American  jurists.  There 
some  discrepancy  amon^  his  biographers  concerning  the 
events  ol"  his  youth.  His  birthplace  has  been  said  to  have  been  in 
Dutchess  county,  at  Fredericktoii,  now  Kent,  but  according  to  the  best 
authority  he  was  born  in  Putnam  county,  at  Pliilippi.  His  grand- 
father, Elisha  Kent,  was  the  son  of  a  fanner  in  Connecticut,  was  grad- 
uated at  Yale  in  172S,  married  a  daughter  of  the  Reverend  Doctor 
Moss,  of  Connecticut,  preached  some  time  at  Nevvi^own,  and  then 
became  the  pastor  of  the  presbyteiian  church  at  Philippi  (1740),  dying 
there  in  177().  His  parish  was  known  as  Kent's  parish.  Moss  Kent, 
his  oldest  son,  was  graduated  from  Yale  in  1752,  and  was  admitted  in 
1750  to  the  bar  of  Dutchess  county.  He  became  surrogate  of  Rens- 
selaer county,  and  died  in  1794. 

James  Kent  was  sent  at  the  age  of  five  to  a  school  in  Norwalk, 
Connecticut,  and  afterward  attended  a  Latin  school  in  Danbury,  Con- 
necticut, where  he  prepared  for  Yale.  He  en- 
tered Yale  in  1777  and  was  graduated  in  1781. 
In  his  diary  he  records  his  opinion  of  the 
weakness  of  Y'ale's  curriculum  at  that  time. 
^^'llile  at  Yale  he  was  one  of  the  founders  of 
the  Phi  Beta  Kappa  Society. 

Before  his  graduation  he  by  accident  one 
day  picked_  up  a  copy  of  Blackstone's  Com- 
mentaries, and  he  has  recorded  how  it  im- 
l)ressed  him  :  "  When  the  college  w^as  broken 
up  and  dispersed  in  July,  1779,  by  the  British, 
I  retired  to  a  country  village,  and  finding 
Blackstone's  Commentaries  I  read  the  four 
volumes.  Part  of  the  work  struck  my  taste, 
and  the  work  inspired  me  at  the  age  of  fifteen 
with  awe,  and  I  fondly  determined  to  be  a  lawyer."  In  November,  1781, 
he  began  the  study  of  law  with  the  celebrated  Egbert  Benson,  the  first 
attorney-general  of  the  state,  and  afterward  one  of  the  judges  of  the 
Supreme  Court.  At  this  time  Benson  was  the  acknowledged  leader  of 
the  New  York  bar.  Kent  continued  in  his  office  at  Poughkeepsie  until 
he  had  fully  grounded  himself  in  the  principles  of  the  profession.  His 
range  of  reading  during  his  student  life  was  large.  Besides  law  he 
read  works  of  general  literature  and  took  up  French,  of  which  he  later 
became  a  master.  He  also  continued  to  cultivate  his  Greek  and  Latin. 
In  1785  he  was  licensed  as  an  attorney,  and  in  17S7  he  was  admitted  to 
the  bar  as  counsellor  at  Albany.  He  married  in  1785  Elizabeth  Bailey, 
the  sister  of  Theodorous  Bailey,  who  was  subsequently  United  States 
senator.  Immediately  after  his  admission  he  opened  an  office  at 
Catron,  New  Y'ork,  which  has  since  become  a  part  of  the  State  of  Con- 


JAMES   KENT 


380  HISTORY    OF   THE   BENCH   AND   BAR   OF   NEW  YORK 

necticiit.  In  that  A'illage  lie  failed  to  obtain  a  single  piece  of  legal 
work  to  do.  In  the  diary  of  his  life  he  has  left  an  amusing  account  of 
■v^hy  he  left  Catron.  He  was  waited  on  by  a  committee  of  the  town, 
who  informed  him  that  the  people  regarded  lawyers  as  destructive  of 
the  peace  and  order  of  the  people,  and  hence  had  been  deputized  to 
call  on  him  and  ask  him  to  remove  from  the  town.  Mr.  Kent  informed 
the  committee  that  he  would  go  at  once,  and  in  about  a  month  there- 
after he  undertook  practice  in  Frederickton,  Dutchess  county.  He 
remained  there  but  a  few  months,  when  he  was  induced  by  friends  to 
go  to  Poughkeepsie.  Soon  after  his  removal  to  Poughkeepsie  he 
entered  into  an  association  with  Gilbert  Livingston.  The  articles  of 
copartnership  provided  for  a  term  of  twelve  years.  The  firm  im- 
mediately acquired  a  very  good  business. 

After  two  years  of  practice  at  Poughkeepsie  Mr.  Kent  was  elected 
(1790)  to  represent  Dutchess  county  in  the  state  legislature,  and  in 
1792  he  was  re-elected.  He  acted  with  the  federalists.  While  he  was 
a  member  of  the  legislature  Aaron  Burr  was  chosen  by  it  a  United 
States  senator.  Kent  voted  for  Schuyler.  In  1792  he  took  a  very 
prominent  part  in  the  contest  for  the  governorship  between  John  Jay 
and  George  Clinton.  He  favored  Jay,  and  wrote  a  very  able  argument 
in  support  of  Jay's  election  when  the  matter  of  contest  was  referred  by 
the  legislature  to  the  judgment  of  the  two  United  States  senators. 
King  and  Burr.  In  this  argument  he  showed  the  fallacies  in  Burr  s 
opinion  to  the  effect  that  the  disputed  election  was  in  favor  of  Clinton. 
But  the  attitude  thus  taken  by  Mr.  Kent  did  not  cause  a  rupture  of  his 
social  relations  with  Burr.  '•  I  have  dined  and  breakfasted  with  Mr. 
Burr,"  he  wrote  at  this  time,  "  and  hav  e  received  great  attention  and 
politeness  from  him.  The  insinuation  of  his  manners  is  equal  to  the 
refinement  of  his  taste  and  activity  of  his  mind."  While  still  in  the 
legislature  he  ran  for  congress,  but  was  defeated. 

In  1793,  after  his  term  in  the  legislature  had  expired,  he  removed 
to  New  York  City.  During  his  first  year's  practice  there  Governor 
Jay,  to  whom  Kent's  federalist  sympathies  were  a  strong  recommenda- 
tion, appointed  him  a  master  in  chancery  for  the  cit}'.  The  New  York 
City  bar  of  that  era  shone  with  a  brilliancy  rarely  since  equalled. 
Aaron  Burr,  Alexander  Hamilton,  Josiah  Ogden  Hoffman,  Brockholst 
Livingston,  Egbert  Benson  and  James  Duane  were  then  in  full  practice- 
Kent  had  the  advantage  of  having  dealings  with  all  these  great  lawyers 
while  he  was  a  master  in  chancery.  His  attention  was  called  to  the 
old  writers  on  civil  laws  and  their  modern  expounders  in  Europe  by 
Alexander  Hamilton.  He  read  and  studied  such  works  as  those  of 
Pothier  and  Emerigon,  and  became  familiar  with  the  whole  school  of 
French  commentators  on  the  civil  law.  This  rounded  out  his  legal 
education  and  fitted  him  to  lecture,  and  in  the  year  1793  he  was 
appointed  professor  of  law  in  Columbia  College.  He  began  his  lectures 
in  November,  1794.     Of  his  first  course  he  afterward  Vvrote  :  "  I  i-ead  a 


IIISI'OKY    (>K     IIIK    IJKNCII    AM)    MAU 


NKW    voi:k 


:{.si 


course  in  IT'.' I  '■'■">  to  about  forty  ^(Millcnicn  of  (he  lii-st  rank  in  IIk; 
city.  Tliry  were  \  try  well  received,  hut  1  hnvo  lon^  siiu-e  discovered 
tlicni  to  have  beeu  sli^iit  and  trashy  i)roductioiis."  in  IT'.tt)  he  waw 
scut  to  the  legislature  t'l-oni  New  York  City.  As  to  the  position  he 
occupied  at  Albany  there  is  no  authentic  recoi'd.  II is  (pialities  were 
judicial  rather  than  executive  or  legislative,  lie  jjrobably  had  much 
of  the  chai'acter  of  a  silent  member.  In  17i)7  lie  became  recorder  of  the 
City  of  New  York,  but  in  less  than  a  year  he  resigned  to  accei)t  an 
appointment  as  judge  of  the  Supreme  Court.  In  18(i4  he  was  nuide 
chief-justice. 

The  Supreme  Court  of  New  York  as  then  constituted  was  a  per- 
fect copy  of  the  English  King's  Bench.  It  was  not  in  any  sense  a  local 
or  county  court,  but  was  a  state  court  which  sat  in  have  at  New  Yoi'k 
City  and  Albany,  and  the  judges  rode 
the  circuit  of  the  counties  and  took  ver- 
dicts. The  court  was  a  unity  and  con- 
sisted of  a  certain  number  of  judges  and 
a  chief-justice,  with  jurisdiction  extend- 
ing all  over  the  state.  In  Kent's  time, 
at  least  when  he  went  on  the  bench, 
Albany  county  comprised  a  vast  part 
of  the  northern  and  western  portion  of 
of  the  state.  Most  of  the  business  of 
the  Supreme  Court  was  transacted  at 
Albany,  and  in  1799  Judge  Kent  re- 
moved to  that  city.  He  served  on  the 
Supreme  Court  bench  until  1814.  His 
opinions  from  the  supreme  bench  are 
reported  in  the  "  Reports  "  of  George 
Caines  and  in  the  "  Reports  of  Cases  in 
the  Supreme  Court  and  Court  of  Errors 
of  New  Y^ork  from  1806  to  1823,"  by 
William  Johnson. 

Kent's  common-law  opinions  have  been  overlooked  by  the  profession 
while  associating  him  with  equity  jurisprudence.  In  them  he  origin- 
ated many  principles  of  law.  Had  it  not  been  for  his  transcendent 
fame  as  a  chancellor,  which  somewhat  obscures  his  reputation  as  a 
common-law  judge,  his  decisions  while  on  the  supreme  bench  would 
have  made  him  famous.  His  first  reported  decision  is  found  in  1  John- 
son's Cases,  1 .  From  the  reading  of  this  opinion  one  can  see  at  a  glance 
how"  perfectly  prepared  he  was  to  assume  the  judicial  ermine.  It  is  a 
model  of  clear  statement  and  logical  reasoning.  He  adopted  in  it  a  style 
of  writing  which  he  pursued  Avliile  on  the  bench,  that  of  first  stating 
just  what  the  point  or  points  to  be  decided  was  or  were,  and  then  pro- 
ceeding to  deal  with  each  point  from  a  legal  standpoint.  There  is  never 
any  doubt  in  the  mind  of  a  lawyer  just  what  Kent  decided.    The  point 


382  HISTORY    or   the   bench   and   bar   of   new  YORK 

determined  is  stated  with  a  clearness  unrivalled  by  any  other  American 
judge.  It  is  quite  a  coincidence  that  the  case  alluded  to  above  (^Seton 
vs.  Low)  should  have  been  one  involving  questions  of  commercial  law 
and  the  law  of  insurance,  in  which  branch  of  jarisprudence  Kent  par- 
ticularly shines  in  his  "  Commentaries."  The  opinion  begins  thus : 
"  Two  questions  were  raised  on  the  argument  in  this  case  :  1.  Whether 
the  contraband  goods  were  lawful,  within  the  meaning  of  the  policy. 
2.  If  lawful,  whether  the  assured  were  bound  to  disclose  to  the  defendant 
the  fact  that  part  of  the  cargo  was  contraband  of  war."  This  method  of 
delivering  an  opinion  may  reasonably  be  commended  to  the  judges  of 
the  present  day,  who  too  often  leave  it  in  doubt  precisely  what  point 
or  points  their  opinions  involve.  In  Kent's  second  reported  case,  that 
of  Ludlow  vs.  Dale  (Johnson's  Cases,  16),  there  appeared  before  the  court 
of  which  he  was  a  member  a  great  array  of  legal  talent.  Hoffman  and 
Livingston  represented  the  plaintiff  and  Harison  and  Alexander 
Hamilton  the  defendant.  It  was  an  insurance  case.  The  j^oint  in- 
volved was  whether  the  sentence  of  an  admiralty  court  of  a  bellig- 
erent precludes  all  further  inquiry  respecting  the  neutrality  of  the  prop- 
erty. He  rendered  a  decision  replete  with  learning,  and  cited  a  long 
list  of  English  cases  to  justify  his  conclusion  that  the  foreign  judgment 
was  final.  In  the  case  of  Jackson  vs.  Rogers  (1  Johnson's  Cases,  33) 
we  find  him  taking  part  in  banc  on  a  motion  for  a  new  trial  in  an 
ejectment  suit.  Spencer  and  Burr  were  among  the  counsel  for  the 
plaintiff,  and  Van  Vechten  for  the  defendant.  Judge  Kent  gave  his 
decision  in  favor  of  Burr's  client.  The  case  is  important  as  containing 
a  model  exposition  of  exactly  what  constitutes  a  disseisin,  and  the  dis- 
tinction between  a  disseisin  by  election  as  contradistinguished  from  a  dis- 
seisin in  fact.  In  Johnson  vs.  Bloodgood  (I  Johnson's  Cases,  54)  he  lays 
down  the  doctrine  that  courts  of  law  will  take  notice  of  assignments 
and  trusts,  and  consider  who  are  beneficially  interested,  and  will  pro- 
tect the  cestui/  que  trust.  In  Betts  vs.  Turner  (1  Johnson's  Cases,  70) 
he  defines  the  rule  for  the  construction  of  covenants  and  what  consti- 
tutes a  performance  or  a  breach.  With  all  the  learning  that  has  been 
expended  on  the  subject  of  the  performance  and  breach  of  covenants 
since  Kent's  time,  nothing  new  has  been  developed  in  principle  fi'om 
that  laid  down  by  him  in  this  last  case.  The  opinion  is  a  model  of 
conciseness  and  brevity.  In  Frost  vs.  Carter  (1  Johnson's  Cases,  73)  he 
construes  an  insolvent  law  and  arrives  at  the  conclusion  that  if  an  in- 
dorser  pay  a  note  after  the  maker  has  been  discharged  under  the 
insolvent  act,  he  may  recover  the  amount  from  the  maker,  whose  dis- 
charge will  be  no  bar  to  the  action.  In  Jackson  vs.  McCrea  (1  John- 
son's Cases,  114)  he  was  called  on  to  decide  against  his  mentor  and  idol, 
Hamilton.  The  case  involved  the  question  as  to  what  constitutes  a 
delivery  of  a  deed.  In  the  United  States  Bank  vs.  Haskins  (1  John- 
son's Cases,  132)  he  decides  a  question  of  pleading  against  Aaron  Burr. 
In  People  ?;«.  Olcott  (2  Johnson's  Cases,  301)  he  delivers  one  of  his  most 


sliikiiiu,-  :iii(l  learned  decisions.  lie  holds  tlial  t lie  comt  may,  in  its 
discrelion,  in  a  criminal  case,  discliarg«^  a  jnry  wiio  aie  unable  to  agree 
on  a  verdict,  and  against  the  consent  of  the  deftmdant,  who  ma}'  be 
bronght  to  trial  a  second  time  for  the  sam«»  offeiUH?.  He  reviews  the 
entire  law  about  extorting  a  verdict  from  an  unwilling  jury  by  means 
of  starvation  and  darkness,  and  arrives  at  the  c(mclusion  "  that  the 
position,  gtMierally  denying  the  power  of  the  court  to  discharge  a  jury 
sworn  and  charged  in  a  criminal  case,  lias  originated  (probably  without 
furtluu"  examination  or  inquiry)  from  a  dictum  to  be  found  in  the  in- 
stitutes of  Loril  Coke,  and  that  this  dictum  rests  npon  his  single  au- 
thority, without  the  sanction  of  any  judicial  decision." 

The  most  important  case  that  Kent  decided  while  on  the  supreme 
bench  was  that  of  People  vs.  Croswell  (3  Johnson's  Cases,  337).  There 
was  a  deal  of  political  excitement  connected  with  this  suit.  The  de- 
fendant had  been  convicted  of  printing  and  publishing  a  scandalous 
libel  upon  Thomas  Jefferson,  president  of  the  United  States,  and  a 
motion  was  made  to  set  aside  the  verdict  because  the  trial  judge  erred 
in  not  allowing  the  defendant  to  prove  the  truth  of  the  alleged  libel 
and  in  not  permitting  the  jury  to  pass  on  the  question  of  intent  of  the 
defendant.  In  connection  with  Ilarison  and  Van  Ness,  two  very  emi- 
nent lawyers,  Alexander  Hamilton  appeared  for  tlie  prisoner,  and 
this  was  one  of  the  last  cases  he  argued.  The  attorney-general, 
Spencer,  ai)peared  for  the  state.  The  whole  question  of  libel  was 
argued  in  exteiiso,  Hamilton  making  one  of  the  greatest  efforts  of  his 
life.  Kent  subsequently  said  he  had  never  read  or  listened  to  such  an 
argument  as  that  of  Hamilton  in  this  case.  The  court  was  divided  on 
the  question  and  the  motion  for  a  new  trial  was  lost,  but  Croswell  was 
never  punished,  as  no  motion  was  ever  made  for  judgment.  Kent 
delivered  wiiat  is  probably  his  very  greatest  opinion,  either  at  law  or 
in  equity,  reviewing  the  entire  history  of  libel,  and  holding  that  the 
defendant  was  entitled  to  give  in  evidence  upon  the  trial  the  truth  of 
the  libel.  He  drew^  principles  and  illustrations  from  the  civil  law  and 
made  a  minute  historical  analysis  of  the  English  decisions,  rejecting 
Lord  Mansfield's  famous  conclusion  that  "  the  greater  the  truth,  the 
greater  the  libel."  In  1805  a  "  libel  bill "  was  i:)assed  by  the  legislature 
which  embodied  the  \dews  contended  for  by  Kent. 

It  is  needless  to  examine  in  further  detail  the  opinions  delivered 
by  Kent  when  a  Supreme  Court  judge.  The  reports  of  Johnson  and 
Caines  are  replete  with  his  determinations  upon  all  manner  of  ques- 
tions. These  determinations  are  the  very  fountain-head  of  common-law 
learning  in  America,  and  are  daily  referred  to  and  cited  in  our  courts. 

In  1814  he  was  appointed  chancellor  of  the  state  to  succeed  Lans- 
ing. Chancery  law  had  been  very  unpopular  during  the  colonial 
period,  and  had  received  down  to  his  time  but  little  development,  no 
decisions  having  been  published.  Immediately  after  his  appointment 
he  had  the  legislature  pass  an  act  providing  for  a  reporter  to  the 


384       inSTOEY  OF  the  bench  AKD  bar  of  new  YORK 

Chancery  Court,  and  William  Jolmson  was  selected.  Johnson  had 
been  the  reporter  of  the  Supreme  Court  while  Kent  was  a  member  of 
it,  and  the  two  were  great  friends.  He  bears  the  same  relation  to  Kent 
that  Burroughs  does  to  Lord  Mansfield  and  Boswell  to  Doctor  John- 
son. He  reported  all  of  the  chancery  decisions  while  Kent  sat  as  chan- 
cellor. The  condition  of  chancery  jurisprudence  in  America,  and 
especially  in  New  York,  at  the  time  Kent  accepted  the  office,  is  well 
summed  up  by  Kent  himself  : 

For  the  nine  years  I  was  in  that  office  there  was  not  a  single  decision,  opinion, 
or  dictum  of  either  of  my  two  predecessors  cited  by  me,  or  even  suggested.  I  took 
the  court  as  if  it  had  been  a  new  institution  and  never  before  known  in  the  United 
States.  I  had  nothing  to  guide  me,  and  was  left  at  liberty  to  assume  all  such  Eng- 
lish chancery  powei-s  and  jurisdiction  as  I  thought  applicable  under  our  constitution. 
This  gave  me  grand  scope,  and  I  was  only  checked  by  the  revision  of  the  senate 
or  Court  of  Errors.  I  opeued  the  gates  of  the  court  immediately,  and  admitted 
almost  gratuitously  the  first  year  sixty-five  counsellors,  though  I  found  there  had 
been  but  thirteen  admitted  for  thirteen  years  before.  Business  flowed  in  with  rapid 
tide.  The  result  appears  in  the  seven  volumes  of  Johnson's  Chancery  Reports. 
My  course  of  study  in  equity  jurisprudence  was  very  much  confined  to  the  topics 
elected  by  the  cases.  I  had  previously  read  the  modern  equity  reports  down  to 
that  time,  and  of  course  I  read  all  the  new  ones  as  fast  as  I  could  procure  them.  T 
remember  reading  Peere  Williams  as  early  as  1792,  and  made  a  digest  of  the  lead- 
ing doctrines.  I  always  took  up  the  cases  in  their  order,  and  never  left  one  until  I 
had  finished  it.  This  was  only  doing  one  thing  at  a  time.  My  practice  was  first  to 
make  myself  perfectly  and  accurately  (mathematically  accurately)  master  of  the 
facts.  It  was  done  by  abridging  the  bill,  and  then  the  answer,  and  then  the  deposi- 
tions, and  by  the  time  I  had  done  this  slow  and  tedious  process  I  was  master  of  the  case, 
and  ready  to  decide  it.  I  saw  where  justice  lay,  and  the  moral  sense  decided  the 
case  half  the  time,  and  then  I  sat  down  to  search  the  authorities  until  I  had  ex- 
hausted my  books,  and  I  might  once  in  a  while  be  embarrassed  by  a  technical  rule, 
but  I  most  always  found  principles  suited  to  my  view  of  the  case,  and  my  object 
was  to  discuss  a  point  so  as  never  to  be  teased  with  it  again,  and  to  anticipate  an 
angry  and  vexatious  appeal  to  a  popular  tribunal  by  disappointed  counsel. 

Kent's  decisions  while  chancellor  cover  a  wide  range  of  topics,  and 
are  so  thoroughly  considered  and  developed  as  unquestionably  to  form 
the  basis  of  American  equity  jurisprudence.  His  first  equity  decision 
concerns  itself  with  the  scope  of  the  writ  of  ne  exeat,  where  he  holds 
that  the  writ  cannot  be  granted  for  a  debt  recoverable  at  law.  In  the  case 
of  Nicoll  vs.  Trustees  (Johnson's  Chancery,  160),  he  lays  down  the  doc- 
trine that  the  peculiar  state  of  property  and  the  oppressive  nature  of 
the  litigation  at  law,  as  to  the  title,  affords  a  proper  ground  for  the 
equitable  jurisdiction  of  the  court,  and  that  the  party  may  come  into 
equity  first  to  have  his  title  tried  at  law  under  its  superintendence,  or 
he  may  have  the  title  established  at  law  before  he  come  into  equity. 
In  Parkhurst  vs.  Van  Cortlandt  (Johnson's  Chancery,  274),  questions 
arising  under  the  statute  of  frauds  are  dealt  with.  This  case  shows 
Kent's  equitable  mind  to  the  fullest  advantage.  While  he  refused 
specific  performance  he  retained  the  bill  until  compensation  was  made 
the  petitioner  for  improvements. 


IIISIOKV    OK     llIK    l?i;.N(ll     AM>    ItAK    (tK    NKW     V(»l;K  IK") 

The  most  important  case  Kent  dccich'd  while  cliaiirt'llor  was  his 
last,  reported  iiiuhT  the  title  of  .lerome  r.v.  Ross  (7  .lohiisoii's  Chan 
eery,  IJI.")).  'IMie  opinion  is  a  veritaMe  nunc  of  e(piity  leaI•nin^^  '\'\\<- 
petitionei-soiiiihtan  injunction  ai^ainst  a  threatened  trespass  on  his  land 
l)y  conunissioners  wlio  were  building  a  canal,  l)ein<(  anthoriz<id  thereto 
by  statntt".  The  injunction  was  denied  on  the  -ground  that  an  injunc- 
tion to  restrain  a  mere  trespass,  where  the  injury  is  not  irreparable  and 
(hvstructive  to  the  plaintiirs  estate,  but  is  susceptible  ol"  pecuniary 
compensation,  could  not  be  granted.  This  decision  is  one  of  the  land- 
marks of  equity  i)ractic(^  touching  injunctions.  He  reviewed  the  whole 
history  of  the  law  of  injunctions  and  denied  that  chancery  had  power 
to  usurp  common-law  jurisdiction  by  means  of  this  writ.  In  these 
days,  when  the  instrnment  of  injunction  is  invoked  in  every  case  re- 
mediable at  law,  it  might  be  well  for  courts  to  read  Kent  before 
granting  it.  His  reasoning  shows  him  to  have  been  in  full  sympathy 
with  Lord  Eldon's  views  touching  equity,  to  the  effect  that  equity 
jurisprudence  should  be  systematic  and  not  founded  on  the  mere  ipse 
di.rit  of  the  chancellor,  as  Lord  Hardwicke  and  later  Sir  George  Jessel 
were  wont,  b}'  their  actions,  to  assume. 

While  still  cliancellor,  Kent  became,  in  1822,  a  member  of  the  con- 
vention to  revise  the  state  constitution,  and  in  1823,  having  attained 
the  age  of  sixty,  he  resigned  the  chancellorship,  because  the  consti- 
tution inhibited  his  holding  the  office  after  that  age.  His  retirement 
was  contemplated  by  the  bar  with  the  deepest  concern,  and  the  members 
residing  in  the  City  of  New  York  appointed  a  committee  to  prepare 
an  address  on  the  occasion,  which  was  adopted,  and  the  committee 
were  requested  to  transnut  the  report  to  him  at  Albany.  The  address 
was  signed  by  all  the  leading  lawyers  of  the  city,  and  expressed  their 
regret  that  his  term  of  service  had  expired. 

After  his  resignation  he  removed  from  Albany,  wdiere  he  had  lived 
while  chancellor,  to  New  York  City,  and  resumed  the  delivery  of  law 
lectures  at  Columbia  College.  He  also  practiced  law  as  chamber 
counsel.  Out  of  the  lectures  he  now  delivered  grew  the  ''Commen- 
taries on  American  Law,"  the  first  edition  of  which  w\as  jmblished  in 
1826-30.  These  commentaries  have,  by  their  learning,  range  and  lu- 
cidity of  style,  won  for  liira  a  high  and  permanent  place  in  the  esti- 
mation of  both  English  and  American  jurists. 

At  the  present  time  there  is  a  renaissance  in  the  study  of  Kent. 
Oliver  Wendell  Holmes  has,  in  his  edition  of  the  commentaries, 
pointed  out  Kent's  great  juristic  powers,  wdiile  the  distinguished  Eng- 
lish jurist.  Sir  Frederick  Pollock,  has  on  more  than  one  occasion  made 
mention  of  his  indebtedness  to  Kent.  Judge  Dillon,  in  his  work  on 
the  '•  Laws  and  Jurisprudence  of  England  and  America,"  pays  this 
tribute  to  him : 

The  American  bar  and  people  venerate  the  name  and  character  of  Chancellor 
Kent.     Simple  as  a  child  in  his  tastes  and  habits  throughout  his  tranquil  and  useful 


386  HISTORY   OF  THE   BENCH   AND   BAR   OF   NEW   YORK 

life;  more  than  any  other  person  the  creator  of  the  equity  system  of  this  country, 
the  author  of  commentaries  which,  in  accuracy  and  learning,  in  elegance,  pui-ity 
and  vigor  of  styls,  rival  those  of  Sir  William  Blackstone,  his  name  is  admired,  his 
writings  prized,  his  judgments  at  law  and  in  equity  respected  in  every  quarter  of  the 
globe  (and  nowhere  more  than  in  England),  wherever  in  its  widening  conquest  the 
English  language,  which  is  the  language  of  freedom,  has  carried  the  English  law. 

He  continued  to  live  in  New  York  City,  delivering  law  leetures 
and  acting  as  chamber  counsel,  till  his  death.  He  was  very  fond  of 
country  life,  and  used  frequently  to  go  on  short  pilgrimages  to  the 
neighborhood  of  New  York  City.  He  was  a  man  of  great  purity  of 
character,  of  singular  simplicity  and  gentleness,  and  is  altogether  a 
conspicuous  figure  in  American  history. 


^^^ENT,  WILLIAM  (born  in  1802  ;  died  in  Fishkill,  New  York, 
gSS^I  January  4,  1861),  was  the  son  of  Chancellor  Kent.  He  was 
^^^^1    early  educated  to   the  law  and   soon  rose  to   considerable 

^        ''   prominence  in  his  profession.     In   1841  he  was  appointed 

circuit  judge  of  the  1st  circuit  by  Governor  Seward,  holding  the  posi- 
tion until  1846,  when  he  resigned  to  accept  the  professorship  of  law  in 
Harvard  University.  In  1847  he  resigned  from  Harvard  and  returned 
to  New  York  City.  He  was  a  scholarly  and  able  lawyer.  He  co-operat- 
ed with  Benjamin  F.  Butler  and  David  Graham  the  younger  in  organiz- 
ing (March,  1838)  the  law  faculty  of  the  University  of  the  City  of  New 
York,  and  was  one  of  its  original  lecturers. 


]ERNAN,  FRANCIS  (born  in  what  is  now  the  town  of  Tyrone, 
Schuylercounty,  New  York,  January  14, 1816  ;  died  in  Utica, 
New  York,  September  7,  1892),  was  of  Irish  descent,  being 
the  son  of  General  William  Kernan,  an  influential  citizen  of 
Schuyler  county.  He  worked  on  his  father's  farm  until  he  was  seven- 
teen years  old,  meantime  attending  a  district  school,  and  then  entered 
Georgetown  College,  in  the  District  of  Columbia,  where  he  remained 
until  1836.  Upon  leaving  that  institution  he  immediately  began  the 
study  of  law  at  Watkins,  in  his  native  county.  In  1889  he  entered  the 
law  ofiice  of  Joshua  A.  Spencer,  in  Utica,  and  after  his  admission  to  the 
bar  in  the  following  year  he  became  Mr.  Spencer's  partner.  The  Utica 
bar  at  that  period  embraced  some  of  the  ablest  lawyers  of  the  state, 
including,  besides  Mr.  Spencer,  such  man  as  Hiram  Denio,  Samuel 
Beardsley,  Ward  Hunt,  William  and  Charles  Tracey  and  Charles  P. 
Kirkland,  and  young  Kernan  very  soon  took  rank  with  them,  being 
recognized  as  one  of  the  leading  practitioners  in  central  New  York. 
Meantime  he  took  a  hearty  interest  in  politics,  as  a  democrat,  but 
never  sought  office.  His  subsequent  important  political  career  was  due 
to  his  admitted  intellectual  fitness  as  a  foremost  leader  of  his  party, 
and  not  to  any  personal  seeking. 

From  1854  to  1857  he  served  as  official  reporter  of  the  Court  of 


IlISldKV     OK    IIIK    HKNCII    AM)    liAl;    ol'    M.W     VuKK  MH? 

Ai)i)e:ils,  ])iiblisluii';  four  \-oli!iiif's  of  reports.  In  18r»0  luMvas  elected  to 
the  iisscnibly,  iiiid  lie  was  one  ol  (lie  most  proininciit  members  of  tliat 
body.  In  ISCi'J  he  was  chosen  a  representative!  in  congr«;ss,  defeatin<; 
Roscoe  (V)nklin<i-.  lie  rendered  valnal)le  services  in  the  house  as  a 
member  of  tli(!  judiciary  committee.  He  was  a  candidate  for  re-elec- 
tion in  1804,  but  was  beaten  by  Mr.  Conklinf]^.  In  18(57,  as  a  member 
of  the  constitutional  convention,  lu^  aided  in  framin<i:  the  new  judiciary 
system  of  the  state.  From  1S7(>  until  his  death  Ik;  was  connected  with 
the  board  of  reutMits  of  the  State  University.  He  led  his  party  as 
candidate  for  i^overnor  in  1872,  when  General  ])ix  was  elected  to  that 
oflice,  and  in  187.")  he  was  chosen  by  the  legislature  senator  of  the 
United  States.  lie  retired  from  the  senate  in  1881,  the  republicans 
having  again  gained  the  ascendency  in  the  New  York  legislature. 


tyre  HAM,  LEANDER  SMITH  (born  in  Marion,  Wayne 
county,  New  York,  August  31,  1818  ;  died  in  Clyde,  Wayne 
county.  New  Y'ork,  March  27, 1870),  obtained  his  legal  educa- 
tion by  private  study,  and  after  admission  to  the  bar  was  a 
l)ractitioner  in  Clyde,  New  Y'ork.  He  was  a  surrogate  and  judge  of 
l)robate  for  eight  years  from  1852,  was  active  in  raising  troops  for  the 
union  army  and  served  in  the  constitutional  convention  of  1867.  His 
decisions  invariably  stood  the  test  of  review  in  the  higher  courts,  not 
one  of  them  being  reversed. 


^ETCHUM,  EDGAR  '  (born  in  New  Y^ork  City,  in  August,  1811 ; 
died  there,  March  'S,  1882),  studied  law  in  the  office  of  Daniel 
P.  Ingraham,  for  many  years  a  judge  of  the  Supreme  Court 
of  the  state,  and  was  at  different  times  associated  with  the 
late  James  W.  Gerard  (the  elder)  and  the  late  Isaac  Adriance.  He 
practiced  in  all  the  state  courts,  and  those  of  the  United  States— includ- 
ing the  Supreme  Court, — conducting  many  important  and  celebrated 
litigations  therein.  He  preferred,  however,  real  estate  laAv  and  convey- 
ancing, and  devoted  himself  lai'gely  to  this  branch  of  practice.  He  was 
very  familiar  with  titles,  especially  in  the  upper  part  of  Manhattan" 
island,  and  was  often  consulted  as  an  expert  by  other  lawyers  upon 
questions  of  title  to  property  in  that  part  of  the  city.  He  was  frequently 
chosen  as  referee  by  opposing  counsel  in  cases  involving  complicated 
legal  questions,  and  where  large  interests  were  represented.  In  the 
forties  he  was  public  administrator,  and  later  he  was  appointed  loan 
commissioner  of  the  City  and  County  of  New  Y'ork,  serving  for  twelve 
years,  when  he  was  appointed  by  President  Lincoln  interval  revenue 
collector  for  the  9th  district  of  New  YVA  City.  In  1867  Chief-Justice 
Chase  made  him  a  register  in  bankruptcy,  wiiicli  position  he  held  until 
his  death.     He  gave  warm  support  to  the  anti-slavery  cause,  devoted 

'  We  are  indebted  to  Colonel  A.  P.  Kctcham  (see  Vol.  ii.,  p.  23i)  for  the  materials  for  this  sketch.        Editor. 


388  HISTORY    OF   THE   BEXCH   AND   BAR   OF   NEAV   YORK 

much  attention  to  the  public   schools  of  New   York  City,  and  was 
eaiuestly  interested  in  various  benevolent  and  religious  enterprises. 


ING,  JOHN  ALSOP  (born  in  New  York  City,  January  3, 
1788 ;  died  in  Jamaica,  New  York,  July  7,  1867),  was  the 
eldest  son  of  Riifus  King  (q.  v.).  He  was  ediicated  abroad 
and  admitted  to  the  bar  in  New  York  ujjon  his  return.  In 
the  war  of  1812  he  was  a  lieutenant  of  cavalry,  and  afterward  he  served 
in  the  assembly  for  a  number  of  years,  where,  though  he  favored  the 
Erie  canal,  he  took  issue  against  some  of  De  Witt  Clinton's  measures 
of  policy.  Later  he  went  to  England  Avith  his  father  as  secretary  of 
legation.  He  was  again  in  the  assembly  in  1838.  As  a  whig  member 
of  congress  when  the  compromise  measures,  including  the  fugitive 
slave  law,  were  adopted,  he  opposed  them  vigorously  and  favored 
admitting  California  as  a  free  state.  In  1855  he  was  the  presiding 
officer  of  the  Saratoga  convention,  which  organized  the  republican 
party  in  New  York,  and  he  was  instrumental,  as  a  delegate  to  the 
republican  national  convention  of  1856,  in  the  nomination  of  Fremont 
for  the  presidency.  He  was  governor  of  New  York  for  one  term  from 
January  1,  1857,  declining  a  renomination.  In  1861  he  was  appointed 
by  Governor  Morgan  a  delegate  to  the  peace  convention. 


ING,  PRESTON  (born  in  Ogdensburg,  New  York,  October  14, 
18U6  ;  drowned  in  the  Hudson  river,  November  12, 1865),  was 
graduated  at  Union  Col- 
lege in  1827,  and  after 

his  admission  to  the  bar  began 

to  practice    in    Saint    Lawrence 

county.     He  early  became  active  ^p^ 

politically  as  a  Jacksonian  demo- 
crat, and   in  1830  founded    the 

Saint  Lawrence  Hepuhlican  at 

Ogdensburg.    He  held  the  office 

of  postmaster  of  that  town,  and       \ 

from  1834  to  1837  he  served  as  a 

member   of  the    assembly.      He 

was  a  democratic  representative 

in   congress   from   1849   to  1853, 

but  afterward  became  identified 

with  the  newly-organized  reinib- 

lican  party.     He  was  an  unsuc-,;^^;^:^^^^^^^^^::^^      y'^TiJz^^ 

cessful  candidate  for  secretary  of / 

state  of  New  York  in  1855.     In 

1857  he  was  chosen  senator  of  the  United  States.    During  the  session  of 

the  senate  early  in  1861,  before  the  inauguration  of  Lincoln,  Senator 


Mis'i'oKV  (IK  'niio  hi:n(  II   and  mm;  <>v  m;w   vhkk  MSO 

KiiiiT  made  a  notablo  speoch  (l(^clarin,<;  his  belief  tliat  the  sections  would 
never  be  reconciled  if  to  tliat  end  it  was  necessary  to  ren(h'i-  "i<fnoniin- 
ious  submission  to  traitors,"  and  announcin<i:  his  i-eadiness  to  "])rovide 
means  for  the  defence  of  the  country  l)y  war."  lie  retired  ujion  the 
completion  of  his  term,  in  18();i,  returning  to  his  i)r()fessional  jiractice 
in  the  (Hty  of  New  York.  lie  took  an  active  i)art  in  obtaininf?  the 
nomination  of  his  fi-iend,  Andrew  Johnson,  for  the  vice-presidency  l)y 
the  i'<»i)ublican  national  convention  of  1804,  and  by  President  Johnson's 
a])pointment  lie  later  became  collector  of  the  jjort  of  New  York.  He 
ended  his  life — his  mind  being  deranged  by  troubles — by  jumping  from 
a  Jersey  City  fiM'ry-boat. 

iXG,  RUFUS  (born  in  Scarborough,  Maine,  in  1755;  died  in 
New  York  City,  April  29,  1827),  the  eldest  son  of  Richard 
King,  a  i)rosperous  Scarborough  merchant,  was  graduated  at 
Harvard  College  in  1777,  and  began  the  study  of  law  under 
Theophilus  Parsons,  at  Newburyport,  Massachusetts.  He  accompanied 
the  Rhode  Island  expedition  of  General  Sullivan  in  1778  as  aide,  and 
being  honorably  discharged  resumed  his  legal  studies  and  was  admit- 
ted to  i^ractice.  He  became  one  of  the  leading  members  of  the  Massa- 
chusetts bar,  and  soon  took  a  prominent  part  in  public  life,  being 
elected  to  the  general  court  in  1783  and  to  the  continental  congress  in 
ITS-l,  1785,  and  178(1  His  career  in  congress  is  especially  memorable 
for  the  introduction  of  a  resolution  by  him  (1785)  providing  that  ''  there 
should  be  neither  slavery  nor  involuntary  servitude  in  any  of  the  states 
described  in  the  resolution  of  congress  in  April, 
1784,"  which  became  the  basis  for  the  ordinance 
1 T8T  concerning  the  government  of  the  northwestern 
territory.  He  served  as  a  commissioner  to  determine 
the  Massachusetts  and  New  York  boundary,  as  a  commissioner  to  con- 
vey to  the  Tnited  States  the  lands  west  of  the  Alleghenies,  and  (jointly 
with  James  Monroe)  as  a  representative  from  congress  to  urge  the 
Pennsylvania  legislature  to  pay  the  five  per  cent,  interest  tax.  He  was 
a  delegate  from  Massachusetts  to  the  national  constitutional  conven- 
tion, was  very  prominent  in  the  debates  of  that  body,  Avas  one  of  the 
members  who  prepared  the  final  draft  of  the  federal  constitution,  and 
subsequently  rendered  most  valuable  services  in  inducing  the  state  of 
Massachusetts  to  ratify  that  instrument. 

In  1788  Mr.  King  removed  to  New  York,  and  although  he  did  not 
actively  practice  his  profession  at  the  bar  in  this  state,  his  distinction 
for  many  years  as  a  citizen  in  public  employments  of  great  honor  and 
responsibility  was  the  completion  of  the  eminent  career  for  which  his 
attainments  as  a  jurist  had  laid  the  foundations.  In  1789  he  was  elected 
to  the  legislature,  which  promptly  chose  him,  with  Schuyler,  to  repre- 
sent the  state  in  the  national  senate.  He  was  a  warm  friend  of  Alex- 
ander Hamilton,  and  collaborated  with  him  in  the  "Camillus"  letters 


390  HISTORY    OF   THE   BENCH   AND   BAR   OF   NEW   YORK 

in  defence  of  Jay's  treaty,  Senator  King's  contributions  to  those  cele- 
brated letters  being  devoted  especially  to  questions  of  maritime  law 
and  commerce.  He  was  re-elected  to  the  senate,  but  resigned  from 
that  body  to  become  minister  to  England,  serving  from  1706  to  1S03. 
Afterward  he  lived  in  retirement  for  ten  years  at  his  country  home  in 
Jamaica,  Long  Island.  Being  again  sent  to  the  senate  in  1813,  he  gave 
earnest  support  to  the  government  in  the  war  with  England,  although 
he  had  opposed  the  war  on  grounds  of  principle.  He  was  defeated 
as  a  candidate  for  governor,  and  also  as  a  candidate  of  the  federalists 
for  president  against  Monroe.  He  was  once  more  elected  to  the  senate 
in  1819,  being  chosen  (as  he  had  been  in  1813)  bj^  a  non-partisan  vote. 
Thoughout  this  second  period  of  his  senatorial  service,  extending  from 
1813  to  1825,  he  was  identified  in  a  very  important  manner  with  the 
consideration  of  the  great  measures  of  public  policy.  He  opposed  the 
creation  of  the  national  bank,  and  also  opposed  not  only  the  admission 
of  Missouri  as  a  slave  state,  but  likewise  the  Clay  compromise  plans, 
expressing  himself  decidedly  against  slavery  as  a  matter  of  principle. 
In  1825  he  was  appointed  by  President  Adams  to  the  British  mission, 
but  soon  after  assuming  its  duties  his  infirm  health  compelled  him  to 


IRKLAND,  CHARLES  PINCKNEY  (born  in  New  Hartford, 
near  Utica,  New  York,  April  7,  1798  ;  died  in  New  York  City, 
August  7,  1883),  was  a  son  of  Joseph  Kirkland,  a  leading- 
citizen  and  lawyer  of  Utica.  He  was  graduated  at  Hamilton 
College  in  1816,  and  was  prepared  for  the  bar  at  the  Litchfield,  Con- 
necticut, Law  School,  which  Avas  then  at  the  height  of  its  prosperity 
and  renown.  He  practiced  in  Utica  until  1851,  first  in  partnership 
with  his  father  and  later  with  William  J.  Bacon,  afterward  justice  of 
the  State  Supreme  Court.  In  1838  he  became  mayor  of  Utica,  and  he 
was  a  member  of  the  New  York  constitutional  convention  of  1846, 
taking  a  conspicuous  part  in  its  deliberations.  During  his  early  pro- 
fessional career  he  was  constantly  occupied  as  counsel  before  the  Court 
of  Errors  and  the  old  Supreme  Court.  In  1851  he  removed  to  New 
York  City,  where  he  continued  to  live  until  his  death.  He  ranked  as 
one  of  the  most  important  members  of  the  metropolitan  bar,  possessed 
a  very  large  practice,  and  was  noted  for  his  indefatigable  industry. 


INICKERBOCKER,  HERMAN  (born  in  Albany,  New  York, 
July  27,  1782  ;  died  in  Williamsburg,  New  York,  January 
30,   1855),  was  a  son  of  Johannes  Knickerbocker,   and  in- 
herited from  him  the  large  Knickerbocker  estate  at  Schagti- 
coke.'     He  was  a  college  graduate,  was  admitted  to  the  bar,  practiced 

'  The  ancestor  of  the  Knickerbocker  family  was  Iler-  Albany.    Johannes  Knickerbocker,  the  father  of  Uer 

man    Jausen    Knickerbocker,    who    emigrated    from  man,  was  a  colonel  in  the  Hevolution,  being  present  at 

Friesland,  Holland,  and  was  one  of  the  earliest  settlers.  JJuryoyne's  surrender  at  Saratoga,  and  later  served  in 

His  projuTty  was  the  result  of  a  grant  from  the  city  of  tlie  Icgi-latiire  as  a  member  from  Rensselaer  county. 


iiisiouv  OK   iHK  m;\(ii   AM)  itAi:  OK  m:\v   voi:k  M'.U 

for  ;i  wliiU' at  All):iny,  was  a  fcdcralisr  lutMiiber  of  congress  ( 1  sol)- 1 1 ), 
served  in  the  assembly  (1S17),  and  was  a  jnd<;e  of  his  connty.  He  dis- 
pensed generous  liospitalily,  and  was  caih'd  the  "Prince  of  Sciiagti- 
colve."  Observing  the  time-honored  custom  of  liis  family— which  was 
ma(h»  a  condition  of  tlie  original  grant— he  entertained  the  mayor  and 
council  of  Albany  annually  at  the  mansion.  In  his  latter  years  he 
became  tinanciallv  embarrassed. 


ANSIXG,  JOHN  (born  in  Albany,  January  :^0,  17.54  ;  mysteri- 
ously disai)peared,  December  12,  1829),  was  the  second  chan- 
cellor of  the  state.  He  gradnated  at  King's  College,  and 
read  law  in  Albany  with  Yates  (subsequently  chief- justice) 
and  then  with  James  Duane  in  New  York  City.  In  1776-77  he  was 
on  Philip  Schuyler's  military  staff.  He  began  the  practice  of  law  at 
Albany,  and  from  1 780  to  1784  he  was  a  member  of  the  assembly  from 
that  city.  From  1784  to  1786  he  was  a  representative  in  the  con- 
tinental congress.  In  1786  lie  was  chosen  to  the  New  Y^ork  assembly  and 
was  elected  speaker.  He  was  appointed  mayor  of  Albany  in  the  same 
year.  In  1787  he  again  went  to  the  continental  congress  as  a  delegate, 
and  also  Avas  api)ointed  by  the  Xew  Y^ork  legislature,  with  Hamilton 
and  Robert  Y^ates,  a  delegate  to  the  convention  to  formulate  a  federal 
constitution.  After  taking  part  in  the  deliberations  of  that  body  both 
Lansing  and  Y'ates  withdrew  and  refused  to  vote  for  the  constitution, 
on  the  ground  that  they  had  been  chosen  to  amend  the  articles  of  con- 
federation, not  to  substitute  for  them  a  new  scheme  of  central  govern- 
ment ;  but  in  1788,  as  a  delegate  to  the  New  Y'ork  convention  called 
to  ratify  the  instrument,  he  took  a  prominent  part  in  advocacy  of  its 
adoption.  From  1788  to  1798  he  was  one  of  the  Judges  of  the  Supreme 
Court  of  New  Y'ork,  becoming  in  the  latter  year  its  chief-justice,  in 
which  office  he  served  until  1801,  when  he  was  appointed  chancellor  to 
succeed  Livingston.  He  retired  in  1814.  While  chancellor  he  took 
part  in  the  cause  celebre  of  "  the  matter  of  Y^'ates."  One  of  the  rules 
of  the  Chancery  Court  required  solicitors  to  bring  on  equity  suits  in 
their  own  names,  and  not  in  the  name  of  another  solicitor.  John  Y^ates, 
a  prominent  member  of  the  Albany  bar,  but  not  a  solicitor  in  chancer^', 
commenced,  through  a  chancery  solicitor,  a  suit  in  Lansing's  court. 
As  soon  as  the  chancellor  discovered  that  Y^ates  was  not  a  member  of 
his  bar  he  committed  him  to  jail  for  contempt.  Y^ates  retained  Thomas 
Addis  Emmet,  who  applied  to  Ambrose  Spencer,  one  of  the  judges  of 
the  Supreme  Court,  for  a  habeas  corpus.  This  being  granted,  the 
prisoner  was  set  free.  Lansing  again  committed  him  to  jail,  notwith- 
standing the  former  release.  Emmet  applied  to  the  Supreme  Court 
hi  banc  for  another  habeas  corpus,  which  was  denied  by  a  divided 
court.  Emmet  took  the  case  to  the  Court  for  the  Correction  of  Errors, 
and  the  Supreme  Court  was  reversed  and  Y^ates  was  freed.     Y'ates 


392  HISTORY    OF   THE   BKNCH   AND   BAR  OF   NEW  YORK 

then  brouglit  an  action  for  damages  against  the  chancellor,  but  in  this 
he  was  defeated,  it  being  decided  that  a  judge  was  not  individually 
liable  for  his  judicial  acts.  After  resigning  the  chancellorship  Lansing 
lived  in  retirement.  On  December  12,  1829,  he  was  in  New  York  City, 
having  come  from  his  honie  in  Albany,  and  left  his  hotel  to  post  some 
letters.     He  was  never  seen  afterward.' 


]1ARNED,  JOSEPH  GAY  EATON  (born  in  Thompson,  Con- 
necticut, April  29,  1819  ;  died  in  New  York  City,  June  3, 
1870),  was  graduated  from  Yale  College  in  1839,  and  for 
eight  years  was  a  teacher  and  tutor.  Then  he  studied  for 
the  bar,  and  practiced  for  a  time  in  New  Haven.  Removing  to  New 
York  in  1852  he  assumed  prominence  in  patent  law.  He  became 
interested  in  the  manufacture  of  steam  fire-engines,  and  himself  largely 
prepared  the  designs  from  which  the  first  engine  used  in  the  metropolis 
was  built.  He  was  government  inspector  of  ironclads  at  the  Brooklyn 
navy-yard  in  the  last  years  of  the  war. 


ARREMORE,  RICHARD  LUDLOW  (born  near  Astoria, 
Long  Island,  September  6,  1830  ;  died  in  New  York  City, 
September  13,  1893),  was  descended  in  the  paternal  line  from 
an  English  family,  and  on  his  mother's  side  traced  his  ances- 
try to  the  early  Dutch  settlers  of  New  Netherland.  He  studied  law  in 
the  office  of  Betts  &  Robinson  in  New  York,  and  upon  being  admitted 
to  the  bar  engaged  in  practice  with  Messrs.  Scoles  and  Cooper,  who 
were  prominent  in  the  admiralty  branches  of  the  profession.  Devoting 
himself  to  the  law  of  real  property,  he  soon  made  a  high  reputation, 
becoming  counsel  for  the  Dry-Dock  Savings  Institution  and  other 
clients  who  made  loans  on  real  estate  security.  He  was  frequently 
solicited  to  accept  trusts  as  guardian  and  executor,  but  always  declined. 
For  many  years  he  was  an  active  member  of  the  board  of  education, 
and  for  three  years  was  its  president.  His  firmness  prevented  that 
body  from  coming  under  the  control  of  the  Tweed  ring,  and  effectually 
stopped  a  bold  attempt  to  apply  to  the  purchase  of  school  supplies  the 
methods  that  obtained  in  the  building  of  the  county  courthouse.  He 
was  a  member  of  the  constitutional  convention  of  18G7,  taking  a 
prominent  part  in  the  debates,  especially  those  concerning  educational 
questions. 

In  1870,  when  the  judicial  force  of  the  Court  of  Common  Pleas  was 
Increased,  he  was  elected  to  that  bench  with  Hamilton  W.  Robinson, 
Joseph  F.  Daly  and  Charles  H.  Van  Brunt.  Upon  the  retirement  of 
Charles  P.  Daly  he  was  chosen  chief-justice  of  the  court  by  his  associates. 
He  sat  in  the  Supreme  Court  by  the  appointment  of  the  governor. 

Judge  Larremore  obtained  a  recognized  position  as  a  very  excellent 

iSoep.  Ill  of  thin  volume. 


IIISI'OKY    OK   TIIK    lti;N('II    AM)    I!Ai:   OK    N  KW    YoKK 


■A'.y.i 


nisi prlus  judges  and  in  I'liuity  cmuscs,  for  tlu^  (Ictcniiiiialion  of  wliicli 
he  was  specially  adapted  by  his  professional  experience,  lie  manifested 
jndicial  al)iliti<>s  of  an  exceptional  order.  His  ojjinions  were  usually 
brief,  and  though  reversals  fall  to  the  lot  of  every  judge,  he  was 
peculiarly  fortunate  in  the  ai)pellate  court.  A  good  example  of  his 
judicial  methods  may  be  found  in  his  opinion  in  Dupre  r.y.  Rein,  7 
Abb.  N.  C,  2r)().  That  case  involved  an  exannnation  of  a  tripartite 
agreement  between  husband  and  wife  with  tluuntervention  of  a  trustee, 
entered  into  after  the  separation  of  the  wedded  pair.  Citing  numy 
authorities,  he  .stated  the  existing  rules  regulating  the recii)rocal  duties 
and  liabilities  of  the  parties,  and  the  methods  of  enforcing  them,  with 
great  concisene.ss  but  with  the  keenest  discrimination.  The  case 
has  frequently  been  acted  and  followed  and  has  received  the  honor  of 
special  mention  of  the  Court  of  Appeals,  an  honor  seldom  falling  to  a 
decision  at  special  term.' 


AWRENCE,  WILLIAM  BEACH  (born  in  Xew  York  City, 
October  2:3,  IStK) ;  died  there,  March  26,  1881),  was  descended 
from  an  old  and  wealthy  New  York  family,  whose  ancestor, 
about  the  nnddle  of  the  seventeenth  century,  received  a 
grant  of  land  on  Long  Island.  His  father  was  a  New  York  merchant. 
The  son  was  graduated  from  Columbia  College  in  1818,  and  admitted 
to  the  bar  in  1823.  He  became  secretary  of  legation  and  charge 
d'affaires  at  London  in  1826,  and  later  was  in  the  diplomatic  service  at 
Paris.  Returning  to  New  York,  he  became  the  law  partner  of  Hamil- 
ton Fish,  lectured  on  political  economy  at  Columbia  College,  was 
eminent  at  the  metropolitan  bar,  and  took  a  leading  part  in  the  Erie 
railway  enterprise.  He  was  prominent  in  the 
New  York  Historical  Society,  being  its  vice-pre- 
sident from  183»>  to  1845.  His  legal,  historical 
and  miscellaneous  writings  are  numerous. 
Among  them  may  be  mentioned  :  "  Lectures  on 
Political  Economy"  (1832),  "Discourses  on 
Political  Economy"  (1884),  "History  of  the 
Negotiations  in  Reference  to  the  Eastern  and 
Northeastern  Boundai'ies  of  the  United  States  " 
(1841),  "  The  Law  of  Charitable  Uses  "  (1845),  an  '  ^"'"=^'>=  ^km.. 

edition  of  AYheaton's  "  Elements  of  International  Law  "  (18o5),  "  Com- 
mentaire  sur  les  Elhunts  du  droit  international''^  (Leipsic,  1868-80), 
''Etude  de  droit  international  sur  le  mariaqe''''  (Ghent,  1870),  "Disa- 
bilities of  American  Women  Married  Abroad"  (1871),  "The  Indirect 
Claims  of  the  United  States  under  the  Treaty  of  Washington  of  May 
8,  1871,  as  Submitted  to   the  Tribunal  of  Arbitration  at   Geneva" 


Yzy^  |5^^3| 


'  This  biography  is  a   reproduction,   in    part,  of  a 
cmorial   of  Jiid<;e   Larreniore  by  Judge  George   M. 


Van  Hoesen,  read  before  the  Associatii 
the  City  of  New  York. 


394  HISTORY   OF  THE  BENCH   AND   BAE  OF  NEW   YOKK 

(1872),  "  Belligerent  and  Sovereign  Rights  as  Regards  Neutrals  during 
the  War  of  Secession  "  (1878),  and  "  Administration  of  Equity  Juris- 
prudence "  (1874). 

In  1850  Mr.  Lawrence  removed  his  residence  to  Newport,  Rhode 
Island,  and  for  the  rest  of  his  life  he  was  a  citizen  of  that  state,  serving 
a  term  as  lieutenant-governor  (1850),  and  for  a  part  of  the  time  being 
acting-governor.  In  1873  he  argued  the  important  case  of  the  Circas- 
sian before  the  British  and  American  international  tribunal  at 
Washington,  which  resulted  in  the  only  reversal  of  a  decision  of  the 
Supreme  Court  that  has  ever  been  obtained.  He  has  left  a  reputation 
as  one  of  the  foremost  American  authorities  on  international  law. 


lEAVENWORTH,  ELIAS  WARNER  (born  in  Canaan,  New 
York,  December  20,  1803  ;  died  in  Syracuse,  New  York,  No- 
vember 25, 1887),  was  graduated  from  Yale  College  in  1824, 
and  after  studying  under  William  C.  Bryant  was,  in  1827,  ad- 
mitted to  the  bar.  He  continued  in  practice  at  Syracuse  until  1850.  He 
filled  the  various  offices  of  mayor  of  Syracuse  (1849  and  1859),  member 
of  the  assembly  (1850  and  1857),  secretary  of  state  of  New  York  (1854- 
55),  president  of  the  board  of  quarantine  commissioners  (1860),  regent 
of  the  State  University  from  1860  and  afterward  chancellor  of  the  board 
of  regents,  trustee  of  the  State  Asylum  for  Idiots  for  more  than  twenty 
years,  member  of  congress  (1875-77)  and  commissioner  on  the  boundary 
between  New  York  and  New  Jersey  and  New  York  and  Pennsylvania. 
He  compiled  a  genealogy  of  the  Leavenworth  family. 


EYERIDGE,  JOHN  (born  in  New  York  City,  September  15, 
1792 ;  died  there,  February  17,  1886),  was,  notwithstanding 
his  extreme  age — he  died  in  his  ninety-fourth  year — a  prac- 
ticing attorney  until  shortly  before  his  death,  and  was  re- 
puted to  be  the  oldest  active  member  of  the  American  bar.  He  was  ad- 
mitted in  1811,  was  a  private  in  the  war  of  1812,  was  corporation  counsel 
in  1844-45,  and  was  one  of  the  organizers  of  the  Saint  Nicholas  Club 
and  of  the  old  Public  School  Society. 


EWIS,  MORGAN  (born  in  New  York  City,  October  16, 1754  ; 
died  there,  April  7,  1844),  was  a  son  of  Fi-ancis  Lewis,  a  New 
York  merchant  and  signer  of  the  declai'ation  of  independ- 
ence. After  graduating  from  Princeton  College  in  1773  lie 
began  to  prei)are  himself  for  the  bar,  but  abandoned  his  studies  to  enlist 
in  the  revolutionary  army.  He  served  through  the  war,  being  aide  to 
General  Horatio  Gates  and  quartermaster-general  of  the  northern 
army,  and  obtaining  distinction  for  gallantry. 


II  I> 


)i;v  »»i-  n 


in;N('ll    ANU    ISA  I 


m;\\    vokk 


:{•>!) 


Ifti'tl  liis  |)r()f('ssi<)ii:il  I 
•aiiu"    cininent  ut  the 


l)ar 


O^ 


rpoii  llic  ictiirn  of  p.-acr  lie  coini 
and,  t'lilcriii.i;-  upon  pi:u-(icr,  soon  be 
(•onsi)i('iions  in  pnblir  lilV.  He  was 
snccessivt'ly  nu'inber  of  assembly, 
jn(l<;o  of  the  Court  of  Conmioii 
IMeas,  state  attorney-fj:eneral  0'i'"'')> 
cliief-jnstice  of  the  Supreme  Court 
of  New  York  (17i)2)  and  governor 
(1804).  At  the  expimtion  of  his 
term  as  governor  he  retired  to  his 
estate  in  Dutchess  county.  In  1812 
he  declined  the  office  of  secretai'y 
of  war,  which  liad  been  tendered 
liim  by  President  Madison.  In  the 
same  year  he  became  quarteiiuaster- 
general  of  the  armies  of  the  United 
States,  and  the  next  year  he  was  pro- 
moted to  be  major-general,  in  which 
capacity  he  commanded  on  the  Ni- 
agara frontier  and  achieved  import- 
ant successes.  "  He  remitted  all  ar- 
rears of  rents  that  were  due  from  those  of  his  own  tenants  in  Delaware 
county  that  had  either  gone  or  sent  a  son  to  the  war,  and  by  his  good 
management  avoided  on  his  own  estates  all  anti-rent  difficulties."  He 
was  grand  master  of  the  freemasons  and  president  of  the  Historical 
Society  and  of  the  Order  of  the  Cincinnati. 


^^^'''^^^(^~'^a'cey?i,-,s^^i-crrd. 


'HOMMEDIEU,  EZRA  (born  in  Stronghold,  Long  Island, 
August  80,  1734:;  died  there,  September  28,  1811),  was  de- 
scended from  Benjamin  L'Hommedieu,  who  emigrated  from 
France  after  the  revocation  of  the  edict  of  Nantes.  He  was 
a  Yale  graduate,  a  member  of  the  New  York  bar,  and  incumbent  of 
various  offices,  being  a  delegate  to  the  New  Y^ork  provincial  congress 
and  one  of  the  framers  of  the  state  constitution  of  1777,  a  member  of 
the  assembly,  state  senate  and  council  of  appointment,  regent  of  the 
State  University  and  a  federalist  representative  in  congress. 


INN,  WILLIAM  (born  in  New  Y'ork  City,  August  31,  1790; 
died  in  Ithaca,  New  York,  January  14,  1867),  was  a  success- 
ful lawyer  at  Ithaca.  He  wrote  the  "  Koorbach  Papers " 
(1844),  given  to  the  public  as  extracts  from  ., 

the  travels  of  Baron  Roorbach — wdiencethe  political     Y/}y' 
Americanism,    "  roorbach,"     He    published    also    a 
"  Life  of  Thomas  Jefferson  "  (1834)  and  a  ''  Legal  and  Commercial  Com- 
monplace Book"  (1850). 


396 


HISTORY  OF  THE  BENCH  AND  BAR  OF  NEW  YORK 


IVmGSTON,  EDWARD  (born  in  Clermont,  Columbia  coun- 
ty, New  York,  May  26,  176i ;  died  in  Montgomery  Place, 
Dutchess  county,  New  York,  May  23,  1836),  was  a  great- 
grandson  of  Robert  Livingston,'  the  founder  of  the  family 
in  America,  a  son  of  Robert  R.  Livingston  (q.  v.),  justice  of  the  co- 
lonial Supreme  Court,  and  younger  brother  of  Chancellor  Robert 
R.  Livingston  (q.  v.).  He  lived  at  home  in  the  Clermont  manor,  hav- 
ing a  clergyman  as  his  instruc- 
tor, until  his  twelfth  year,  when 
he  was  sent  to  Albany  to  school, 
but  from  there  he  was  soon 
taken  to  Kingston  in  the 
County  of  Ulster  and  placed 
under  a  tutor.  While  he  was 
in  attendance  at  school  in 
Kingston  the  British  burned 
the  town,  and  also  burned  Cler- 
mont, the  manor-house  of  Liv- 
ingston's mother,  his  father 
having  died  a  while  before. 
The  widow  took  all  her  chil- 
dren whom  she  then  had  at 
home,  including  Edward,  to 
Salisbury  in  Massachusetts,  but 
soon  returned  to  Clermont,  the 
British  having  withdrawn,  and 
the  manor-house  was  rebuilt. 
In  1779  he  entered  the  junior 
class  of  Princeton.  He  gradu- 
ated in  1781  at  the  age  of  sev- 
enteen. On  leaving  college  he  began  the  study  of  law  at  Albany  in 
the  office  of  John  Lansing,  afterward  one  of  the  chancellors  of  the  state. 
During  this  period  he  made  the  acquaintance  of  Aaron  Burr.  In  1783, 
after  the  evacuation  of  New  York  City  by  the  British,  his  mother 
removed  thither  and  Edward  continued  his  studies  there.  In  1785  he 
was  licensed  to  practice  as  an  attorney.  While  studying  law  he 
attracted  the  attention  of  Lafayette,  who  was  a  frequent  guest  of  his 


'  The  American  ancestor  of  the  Livingston  family, 
Kobcrt  Livingston  (born  in  Ancrum,  Scotland,  Decem- 
ber 13,  1G54  ;  died  in  Albany,  New  York,  April  20,  1785), 
was  a  son  of  Reverend  John  Livingston,  a  non-con- 
forming Scotch  presbyteriaii  divine,  who  after  the  act 
of  uniformity  (1663)  went  to  Rotterdam,  lloUand,  dying 
there  in  1072.  Robert  Livingston  arrived  in  Charles- 
town,  Massachusetts,  in  1673,  and  from  there  removed 
to  Albany,  where  he  became  very  prominent.  Receiv- 
ing in  1686  from  Governor  Dongan  a  large  grant  of  land, 
which  in  1715  was  confirmed  by  royal  charter,  I. e  erected 
the  manor  and  lordship  of  Livingston,  "  with  the  priv- 
ilege of  holding  a  court  leet  and  a  court   baron,  and 


with  the  right  of  advowson  to  all  the  churches  within 
its  boundaries.  This  tract  embraced  large  parts  of  what 
are  now  the  counties  of  Dutchess  and  Columbia,  New 
York,  and  is  still  known  as  Livingston  manor,  though 
most  of  it  has  long  since  passed  out  of  the  hands 
of  the  family."*  Robert  married  the  widow  of  Rev- 
erend Nicholas  Van  Rensselaer,  who  was  the  daughter 
of  Philip  Petersen  Schuyler.  Peter  Van  Brugh  Living- 
ston, a  prominent  merchant,  and  Philip  Livingston, 
signer  of   the  declaration  of    independence,  were  his 


■■  Api)k'tonV  "Cyrlopiedia  of  AnuTicaii  Itiograi)hy.' 


^'e^ 

^^^^^^^^^  1 

^^^^^^v-.   f'^'-rW^^^^M 

■  L    z'                       ..^1 

^^^^^^^^B 

p^S^^^^^K            ^a| 

s 

■ 

1 

1 

wi:s)'^?r£^m.3'.  iluvsstc 


^ 


'>^X: 


IIISTOHV    OK   TIIK    IJKNCir    AND    HAK    OK    NKW    VOUK  MO? 

ino<li(n''.s  and  who  probably  gave  liiin  his  first  introduction  to  the 
French  civil  law,  of  which  he  afterward  became  a  master.  In  17S8  he 
mariied  Maiy  McEvers,  (laii<j:liter  of  a  New  York  City  merchant. 

In  17*Ji  he  was  elected  a  member  of  the  4tli  con<,fress  of  the  L'nited 
States  for  the  City  of  New  York,  and  lie  was  reelected  in  17'.»«;  and 
171KS.  lie  acted  with  the  republicans  and  a<?ainst  the  federalists.  In 
17!M!  he  and  Andrew  Jackson,  who  was  a  member  of  congress  from 
Tennessee,  voted  a<;ainst  an  address  that  congress  adopted  praising 
AVashinojton's  administration.  As  a  member  of  that  body,  he  i)ar- 
ticii)ated,  in  170."),  in  the  trial  of  Randall  and  Whitney  by  the  house 
for  bribery,  and  the  resolutions  which  he  drew  uj)  t()uchin<:^  their  guilt 
were  adopted.  He  was  the  author  of  an  act  (1790)  for  the  protection 
of  American  seamen  impressed  into  the  service  of  foreign  powers.  He 
took  a  memorable  part  in  the  congressional  proceedings  concerning 
the  "Jay  treaty  matter,"  which  arose  over  an  appropriation  required 
to  carry  into  effect  the  treaty  with  Great  Britain  that  John  Jay  had 
negotiated  in  1794.  The  debate  was  participated  in  by  Livingston. 
Madison,  Giles,  Sedgwick  and  Ames.  Livingston  offered  a  resolution 
calling  on  the  president  (Washington)  to  lay  before  the  house  a  copy 
of  the  instructions  to  Jay,  together  with  the  correspondence  and  other 
documents  relative  to  the  treaty.  Washington  had  previously  refused 
to  send  the  treaty  to  the  house,  claiming  that  in  treaty  affairs  that 
branch  of  the  government  had  no  jurisdiction.  Livingston  was  the 
principal  advocate  of  the  resolution,  and  he  went  into  an  elaborate 
examination  of  the  nature  and  objects  of  the  treaty-making  power. 
He  contended  that  the  house  possessed  jurisdiction,  and  cited  prece- 
dents where  its  discretion  in  the  matter  of  putting  treaties  into  operation 
had  been  recognized  by  the  president.  This  is  one  of  the  great  his- 
toric debates  of  the  American  congress.  The  Livingston  resolution 
was  carried,  but  Washington  still  refused  to  comply,  and  subsequently 
another  resolution  was  adopted  defining  the  attitude  of  the  house  of 
representatives  in  the  premises.  While  a  representative  in  congress 
he  opposed  the  alien  and  sedition  laws  in  speeches  of  great  force.  In 
the  last  congress  in  Avhich  he  sat  he  was  leader  of  the  anti-federalist 
forces,  John  Marshall  being  the  federalist  leader.  The  Jay  treaty  dis- 
pute was  again  revived  by  a  resolution  censuring  President  Adams  for 
delivering  up  as  a  British  subject  a  man  who  had  murdered  another 
on  board  a  British  frigate,  the  surrender  being  in  accordance  Avith  the 
provisions  of  that  treaty.  Livingston  contended  that  as  the  prisoner 
claimed  to  be  an  American  citizen,  impressed  into  the  British  service, 
he  should  have  been  given  a  judicial  trial  on  this  fact ;  that  it  was  not 
for  the  executive  to  decide.  Marshall  vindicated  Adams'  action  in  sur- 
rendering the  fugitive,  and  thus  proceded  a  learned  debate  on  the  sub- 
ject of  what  is  a  judicial  and  what  an  executive  act.  Livingston's 
resolution  was  lost.  In  the  course  of  his  congressional  career  he 
otfered  a  resolution  to  have  a  committee  appointed  "  to  inquire  and 


398 


HISTORY   OF   THE   BE^CH   AND   BAK   OF   NEAV    YORK 


jfEKOAELijs 


report  whether  any  and  what  alterations  should  be  made  in  the 
penal  laws  of  the  United  States,  by  substituting  milder  punishments 
for  certain  crimes,  for  which  infamous  and  capital  punishments  are 
now  inflicted."  The  proposed  conimittee  was  selected,  but  it  never  made 
a  report.  In  1800  the  tie  electoral  vote  between  Jefferson  and  Burr 
occurred,  and  the  matter  was  referred  to  the  house.  Livingston  was 
most  active  in  support  of  Jefferson,  being  the  latter's  representative 
and  spokesman  in  the  contest.  It  was  owing  to  his  influence  that  New 
York's  vote  Avas  given  to  Jefferson. 

In  1801  he  retired  from  congress,  and  President  Jefferson  ap- 
pointed him  district-attorney  for  the  district  of  New  York.  In  the 
same  year  he  became  mayor  of  New  York  City,  but  he  retained  the 
oflSce  of  district-attorney.  He  subsequently  issued  a  volume  of  reports 
of  decisions  delivered  in  the  mayor's  court  while  he  was  mayor.  Dur- 
ing his  mayoralty  yellow  fever  visited  the  city,  and  he  distinguished 
himself  by  making  provision  for  the  relief  of  the  afflicted  and  the 
prevention  of  the  spread  of  the  disease.  In  1S03 
he  resigned  both  as  mayor  and  district-attorney. 
His  assistant  in  the  office  of  district-attorney  had 
embezzled  government  funds  to  the  amount  of 
$45,000,  and  Mr.  Livingston,  being  held  respon- 
sible, made  himself  penniless  in  trying  to  repair 
the  wrong.  He  confessed  judgment  in  favor  of 
the  United  States  for  $100,000  and  also  conveyed 
all  his  property  to  a  trustee  for  sale  for  the  pur- 
pose of  paying  the  debt. 

Immediately  after  his  resignation  he  sailed 
for  New  Orleans  to  begin  life  anew  in  that  ter- 
ritory, whose  purchase  from  France  his  brother 
Robert  had  negotiated,  as  a  representative  of  the 
United  States.  Arriving  in  New  Orleans  in 
180-t  he  at  once  began  to  practice,  making  himself  familiar  with  the 
details  of  Louisiana  procedure.  His  business  grew  with  astonishing 
rapidity.  Within  a  year  he  came  into  much  prominence  as  an  advo- 
cate of  the  civil  as  contradistinguished  from  the  common  law  practice. 
He  contended  that  a  state  could  adopt  what  form  of  procedure  it  chose, 
and  that  the  federal  constitution  did  not  engraft  the  common  law  prac- 
tice on  any  state.  In  this  position  he  has  been  since  sustained  by  the 
Supreme  Court  of  the  United  States.  He  was  asked  by  the  lawyers  of 
the  city  to  prepare  a  practice  code,  which  he  did,  and  which  the 
Louisiana  legislature  adopted  in  1805.  The  characteristic  feature  of 
this  code  was  the  creation  of  a  simple  system  of  statement,  each  party 
being  required  to  state  in  intelligible  language  the  cause  of  complaint 
or  the  grounds  of  defence.  Before  lie  left  New  York  his  wife  died,  and 
in  1805  he  was  married  again  to  the  widow  of  a  Jamaica  Frenchman. 
In  1806  Governor  Wilkinson  of  Upper  Louisiana  charged  Mr.  Living- 


LIVINGSTON  ARMS. 


lIIsroKV    ()!•"    TIIK    IJKNCJI    AM>    ItAlt    <)|'    NKU     V(»|;K  '.VM 

ston  with  lu'int;  an  accessory  of  Aaron  Hiirr  in  liis  treasonable  desi^'iis 
on  th(^  western  territories.  Tliis  ^ave  i-ise  to  an  excitin<;  scene  in  a 
New  Orleans  conrt-rooni,  Livingston  denouncing  NVilkinson  in  the  most 
scathin<j:  ternus.  Nothin;^  fuither  came  of  this  mattei-,  and  it  is  com- 
monly agreed  that  Livingston  knew  nothing  of  liurr's  schemes.  In 
ISO?  occurred  the  celebrated  controversy  between  Pre.sident  .b.'lTerson 
and  Livingston.  Livingston  liad  bought  a  i)iece  of  land  jutting  into 
the  iMississi])i)i  I'iver,  called  the  "  liatture  Ste.  Marie."  Ileproc-eeded  to 
enclose  it.  The  land  had  long  been  used  by  the  public  as  a  i)lace  for 
boats,  it  being  covered  with  water  when  the  tide  rose.  President  JefTer- 
son  took  the  ])osition  that  the  title  to  the  Batture  was  in  the  United 
States,  and  the  commanding  officer  at  New  Orleans  was  ordered  to  use 
military  force  to  eject  Livingston.  Being  dispossessed  he  began  suit  in 
the  \'irginia  District  Court  against  Jefferson  for  damages,  but  was  de- 
feated in  this  action,  the  court  (Marshall  being  chief -justice)  deciding 
that  being  an  action  of  trespass  it  was  local  and  had.  to  be  brought 
where  the  land  lay.  The  *'  Batture  controversy  ''  was  a  leading  topic 
of  political  discussion  in  its  day,  and  both  Jefferson  and  Livingston 
wrote  on  tlie  subject  long  after  Jefferson  ceased  to  be  president.  It 
may  be  of  interest  to  note  that  Chancellor  Kent  examined  Livingston's 
claim  to  the  Batture  property  and  arrived  at  the  conclusion  that  he 
had  a  title,  and  that  Jefferson's  act  in  excluding  him  was  illegal.  In 
1814  he  took  a  very  active  part  in  the  defence  of  New  Orleans  against 
the  British.  In  the  battle  of  January  8,  1815,  he  was  probably  the 
closest  adviser  of  Andrew  Jackson,  the  American  commander.  All 
of  Jackson's  military  orders  were  translated  into  French  and  Spanish 
by  him,  and  thus  delivered  to  those  troops.  This  laid  the  foundation 
for  a  friendship  between  Jackson  and  Livingston  that  was  maintained 
ever  afterward. 

In  182U  he  accepted  a  seat  in  the  lower  house  of  the  Louisiana 
legislature.  He  was  appointed  by  that  body,  with  Mocan-Lislet  and 
Derbigny,  as  a  commissioner  to  draft  a  civil  substantive  and  adjective 
code.  Mr.  Livingston  was  the  most  active  of  the  commissioners,  and 
most  of  the  civil  code  reported  to  the  legislature  was  his  work.  It 
was  adopted  in  1825.  In  February,  1821,  he  was  designated  by  the  legis- 
lature to  revise  the  entire  system  of  criminal  law  of  the  state,  and 
under  the  instructions  given  him  he  framed  a  statute,  reported  in 
182i),  which  was  styled  "  A  System  of  Penal  Law,''  and  was  divided 
into  a  code  of  crimes  and  punishments,  a  code  of  procedure,  a  code  of 
evidence,  a  code  of  reform  and  prison  discipline,  and  a  book  of  defini- 
tions. It  is  upon  the  penal  code  that  Livingston's  reputation  as  a 
codifier  chiefly  rests.  This  code  has  been  commended  by  all  the  lead- 
ing European  codifiers,  and  notably  by  Jeremy  Bentham.  It  was  re- 
printed in  England  and  France.  It  brought  fame  to  its  author,  and 
letters  of  approval  poured  in  from  prominent  men  all  over  the  world. 
Its  philanthropic  provisions  have  noticeably  influenced  the  penal  legis- 


400  HISTORY    OF  THE   BENCH   AND   BAR   OF   NEW   YOKK 

lation  of  several  countries.  It  was  adopted  by  the  Louisiana  legisla- 
ture, in  the  greater  part,  in  1825. 

From  1828  to  1829  Mr.  Livingston  represented  the  New  Orleans 
district  in  congress,  Webster,  Clay  and  Randolph  being  among  his 
associates  in  the  house.  He  became  conspicuous  at  once,  and  took  a 
leading  part  in  the  debates.  His  old  debt  to  the  government  was  paid 
at  this  period  by  the  transfer  of  one  of  the  "  Batture  "  lots  to  it.  In 
the  presidential  contest  of  1824,  when  Crawford,  Jackson,  Clay  and 
Adams  were  candidates  and  neither  had  an  electoral  majority,  Living- 
ston most  actively  favored  Jackson  and  voted  for  him  when  the  elec- 
tion was  throAvn  into  the  house.  Upon  the  expiration  of  his  last  term 
he  was  chosen  United  States  senator  for  Louisiana,  and  he  entered 
upon  his  new  duties  the  same  day  that  Jackson  first  became  president. 
He  was  tendered  the  French  mission,  but  declined  it.  The  most  im- 
portant episode  of  his  senatorial  service  was  his  speech  on  Foot's 
resolution,  violently  attacking  Daniel  Webster,  who  had  charged 
him  with  having  opposed  Washington's  administration.  He  reviewed 
his  own  and  Andrew  Jackson's  conduct  when,  as  members  of  congress, 
they  had  voted  against  the  fulsome  address  to  Washington.  While 
in  the  senate  Livingston  carried  on  a  very  frequent  correspondence 
with  Jeremy  Bentham,  exchanging  views  on  codification  subjects.  He 
took  occasion  as  senator  to  praise  the  services  his  brother  had  rendered 
in  the  purchase  of  Louisiana,  and  spoke  against  granting  a  pension  to 
James  Monroe  for  his  part  in  negotiating  the  Louisiana  purchase.  He 
introduced  a  bill  contemplating  a  penal  code  for  the  federal  govern- 
ment, and  submitted  a  draft  of  such  code,  but  it  never  became  law. 

In  1831  he  left  the  senate  to  become  secretary  of  state  to  Andrew 
Jackson.  He  served  for  two  years,  and  then  was  appointed  minister 
to  France.  As  secretary  he  drafted  the  celebrated  "  Nullification  Pro- 
clamation." He  was  sent  to  France  to  accomplish  two  objects — first, 
to  procure  the  payment  of  a  large  indemnity  sum  which  had  been 
secured  by  treaty,  of  which  a  part  was  then  overdue  from  the  French 
government,  and  second  to  negotiate  a  new  treaty  readjusting  the 
commercial  relations  of  the  two  countries.  Although  his  mission 
failed,  he  obtained  a  great  popularity  at  home  by  the  spirited  manner 
in  which  he  demanded  from  the  French  king  his  passports. 

After  Livingston's  return  to  America  he  went  to  live  at  Mont- 
gomery Place,  the  country  seat  of  his  sister,  Mrs.  Montgomery,  in 
Dutchess  county.  New  York,  which  she  on  her  death  had  willed  him. 
Here  he  died.  His  remains  were  laid  beside  those  of  his  mother  in 
the  vault  of  the  family  at  Clermont,  the  place  of  his  birth.  A  plain 
tablet,  placed  by  his  wife  and  daughter'  in  the  Dutch  Reformed  church 
at  the  village  of  Rhinebeck,  bears  a  simple  inscription,  describing  him 
as  "  A  man  for  talents  equalled  by  few,  for  virtues  surpassed  by  none." 


iiisi(>i;v  OK  nil;  iik.ncm  am»  iiai;  <»k  m;\v   vokk  4()I 

I\'IN(JST()N,  HENRY  JJIUH'KIIOI.S  T  (Ix.ni  in  Nrw  Y(.rk 
City,  iN'ovcinlM'i-  2(5,  17:>7;  died  in  Wiisliinjiloii,  Disfiict  of 
Columbia,  March  li),  18i>:}),  a  son  of  (lovcrnor  William 
Livinuston  of  New  Jersey  (q.  v.),  after  gradnatin-;  from 
l*rinceton  in  1774,  devoted  himself  heartily  to  the  patriot  canse,  and 
durini;  the  Revolntion  served  lirst  as  aide  to  General  Schuyler  and 
then  as  aide  to  General  Arthnr  Sinclair  (l)ein<;  present  at  liurgoyne's 
surrender^  and  subsequently  was  again  attached  to  Schuyler's  com- 
mand with  the  rank  of  lieutenant-colonel.  From  1779  to  1782  he  was 
])rivate  secretary  to  John  Jay,  his  brother-in-law,  at  the  embassy  in 
Madrid.     Returning  to  America,  his  vessel  was  taken  by  the  British, 

and  for  a  time  he  was  a  prisoner  of  war  ..^^^ 

in  New  York.     In  HSlUie  was  admitted  /*  >^     .    ^^---^^.X, 

to  the  bar,  having  stndied  under  Peter      /\a     <^^^^^'--^-^^</ ^tO 
Yates  at    Albany.     Upon    engaging  in  ^ 

l)ractice  in  the  City  of  Xew  York  he  dropped  the  name  of  Henry, 
and  in  the  annals  of  the  bar  he  is  known  as  Brockholst  Livingston, 
lie  ranked  with  Hamilton,  Burr,  Egbert  Benson,  and  the  other  famed 
lawyers  of  that  time,  being  recognized  as  "  one  of  the  most  accom- 
plished scholars,  able  advocates  and  fluent  speakers  of  his  time  in  the 
city,  but  violent  in  his  political  feelings  and  conduct."  He  had  a 
very  distinguished  judicial  career,  serving  from  1S02  to  1807  on  the 
State  Supreme  bench,  and  in  the  latter  year  becoming  an  associate- 
justice  of  the  Suprenie  Court  of  the  United  States,  as  successor  to 
AVilliam  Patterson.  He  was  a  vice-president  of  the  New  York  His- 
torical Society,  a  ti'ustee  of  the  Society  Library,  and  one  of  the 
original  incorporators  of  the  New  York  City  public-school  system. 
He  wrote  political  articles  for  the  press  under  the  name  of  "  Decius." 


flVINGSTON",  HENRY  WALTER  (born  in  Livingston  man- 
or, Linlithgow,  New  York,  in  1768 ;  died  there,  December  2'1, 
ISIO),  a  son  of  Judge  Walter  Livingston  (q.  v.),  was  a  Yale 
graduate  (class  of  1786)  and  entered  iipon  professional  prac- 
tice in  the  City  of  New  York  after  his  admission  to  the  bar.  He 
married  Mary  Allen  Penn  ( '*  Lady  Mary  "),  granddaughter  of  the  Penn- 
sylvania chief-justice.  From  1792  to  1794  he  was  private  secretary  to 
Gouverneur  Morris,  minister  plenipotentiary  at  Paris.  Afterward  he 
was  judge  of  the  Columbia  county  Court  of  Common  Pleas,  and  repre- 
sentative in  the  federal  congress  (1803-7). 


IVINGSTON,  ROBERT  R.,  1st  (born  in  New  York  City  in 
August,  171S;  died  in  Clermont,    New  York,  December   9, 
1775),  was  a  grandson  of  Robert  Livingston,  founder  of  the 
family  in  America,  and  son  of  Robert  Livingston,  a  respect- 
able colonial  lawyer.     He  practiced  with  much  success  at  the  bar  for  a 


402 


HISTORY  OF  THE  BEXCH  AND  BAR  OF  NEW  YORK 


number  of  years,  was  appointed  judge  of  admiralty  in  1760,  and  in  1763 
became  fourtli  justice  of  the  provincial  Supreme  Court,  serving  in  this 
position  until  his  death.  He  held  other  important  offices,  being  a 
member  of  the  provincial  congress  from  Dutchess  county  (1759-6S),  a 
representative  in  the  Stamp  Act  congress  of  1765  (in  which  he  op- 


posed  the  compulsory 
a  commissioner  on  the 


acceptance  of  stamps), 
New  York  and  Massa- 
chusetts boundary  {1767 
and  1773),  and  a  mem- 
ber of  the  committee  of 
1775  which  was  elected 
to  control  in  all  general 
affairs.  He  had  the 
reputation  of  being  the 
wealthiest  landholder 
in  New  York.  His  wife 
was  Margaret  Beek- 
man,  daughter  of  Colo- 
nel Henry  Beekman, 
and  General  Richard 
Montgomery  married 
his  daughter  Janet. 
Justice  R.  R.  Living- 
ston was  somewhat  conservative  on  the  question  of  American  inde- 
pendence. He  stood  for  freedom  rather  than  complete  independence, 
favoring  the  continuance  of  the  colonial  foim  of  government,  with  the 
proviso  that  each  colonist  should  bt  entitled  to  all  the  rights  of  English- 
men. This  was  the  position  taken  in  his  opinion  in  the  case  of  Cun- 
ningham's appeal.  He  did  much  on  the  bench  to  break  up  the  prac- 
tice of  granting  general  warrants  to  customs  officers  to  search  for 
dutiable  goods.  He  was  one  of  the  influential  "  associators-"  against 
aggressions  of  the  king. 


^^^IIYINGSTON,  ROBERT  R.,  2d  (born  in  New  York  City, 
"ip^r^  November  27,  1746  ;  died  in  Clermont,  New  York,  February 
^t^y  26,  1813),  the  first  chancellor  of  the  state,  was  a  son  of  the 
preceeding  and  elder  brother  of  Edward  Livingston.  He 
went  to  King's,  now  Columbia,  College,  where  he  graduated  in  1765,  and 
then  read  law  and  was  admitted  to  the  bar  in  1773.  He  at  first  began 
practice  in  New  York  City  in  partnership  with  John  Jay.  Afterward 
he  was  appointed  recorder  of  the  city,  but  was  soon  displaced  by  loyal- 
ist influence.  In  1775  he  was  elected  to  the  provincial  assembly,  and  he 
was  subsequently  sent  as  a  delegate  to  congress.  He  was  a  member  (in 
1776)  of  the  committee  of  congress  which  drew  up  the  declaration  of 
independence,  but  being  summoned  to  the  New  York  provincial 
congress  his  name  did  not  appear  among  its  signers. 


J 


iiisioKv  OK  iiii:  in:N(  II  AM)  i{.\i:  ok  nkw  vokk  4o:} 

Tie  was  proniiiuMit  iu  tlui  (umvenlion  at  Kingston  (177(i-77)  wliicli 
framed  tlie  first  coiistitulioii  of  New  Yoi-k,  was  elected  cliaiicrllor  aii<l 
lield  the  ollice  until  1801.  During'  i)art  of  tliis  tinn;  (1771)-81)  he 
was  also  a  dele<i:ate  to  tlie  continental  congress.  From  1781  to  178;}  he 
was  secretary  of  foreii^n  aH'airs,  and  in  1788  lie  was  chairman  of  tlie  New 
York  convention  that  latilied  the  federal  (X)nstilution.  When  Washin;?- 
ton  was  lirst  inaugurated  ])resident  Chancellor  Livingston  administered 
the  oath  to  him. 

In  1801  he  wasap])ointed  minister  to  France  by  . I elTerson,  resigning 
his  chancellorship.  In  18()S  he  effected,  in  behalf  of  his  government, 
the  ])urchase  from  France  of  the  vast  territory  then  known  as  Louisiana, 
comprising  the  entire  country  between  the  Mis- 

sissippi  and  the  Rocky  mountains.  This  was  /^/ ^ ///^m / // /i. 
the  most  important  transf(>r  by  purchase  ever  /ffv/^/^^^y^^^^ 
made.     Napoleon  obtained  10,000,000  francs—    '  ^ 

more  than  he  had  been  instructed  to  accept,  for  the  cession, — and  Jeffer- 
son and  Livingston  were  at  the  time  bitterly  censured  for  rashly  con- 
cluding so  useless  a  bargain. 

While  in  Paris  he  met  Robert  Fulton  and  became  interested  in  his 
scheme  of  steam  navigation.  In  1809  he  and  Fulton  built  the  Clerviont 
steamer,  which  was  launched  on  the  Hudson  river.  Previously  he  had 
secured  from  the  state  legislature  a  monopoly  of  steam  navigation  on 
the  waters  of  the  state,  but  this  grant,  after  being  sustained  by  Chan- 
cellor Kent,  was  declared  invalid  by  the  Supreme  Court  of  the  United 
States  in  the  case  of  Gibbons  vs.  Ogden.  During  the  concluding  por- 
tion of  his  life  ha  was  interested  iu  agricultural  pursuits  and  wrote  sev- 
eral tracts  on  those  subjects.  He  was  the  lirst  to  introduce  the  merino 
sheep  into  middle  New  York.  He  was  one  of  the  founders  of  the 
American  Academy  of  Fine  Arts  in  New  York. 

His  opinions  while  a  chancellor  were  not  reported,  and  he  has  left 
nothing  that  would  enable  us  to  gauge  him  as  a  jurist.  Jefferson 
wrote  of  him :  "  Robert  R.  Livingston  is  in  every  sense  of  the  word  a 
wise,  good  and  great  man,  one  of  the  ablest  of  American  law^yers  and 
statesmen." 


IVINGSTON,  WALTER  (born  in  1740 ;  died  in  New  York 
City,  May  1-1,  1797),  a  grandson  of  Philip  Livingston,  signer 
of  the  declaration  of  independence  and  a  grand-nephew  of 
Gov.emor  William  Livingston  of  New  Jersey  (q.  v.),  was  edu- 
cated for  the  bar,  and,  after  serving  in  the  New  York  provincial  con- 
gresses, was  chosen  one  of  the  original  judges  for  Albany.  He  married 
Cornelia  Schuyler,  step-daughter  of  Doctor  John  Cochrane,  and  was 
prominent  in  public  life  during  the  provisional  government,  being  a 
member  of  the  continental  congress  in  1784  and  1785,  and  one  of  the 
first  commissioners  of  the  treasury  (17S5). 


404  HISTOHY    OF   THE   BEXCH    AND   BAR    0¥   NEW   YORK 

[IVINGSTON,  WILLIAM  (bora  in  Albany,  Xew  York,  Xovem- 
ber  30,  1723  ;  died  in  Elizabethtown,  JSTew  Jersey,  July  25, 
1790),  was  a  son  of  Philip  Livingston,  second  lord  of  the 
manor,  and  a  brother  of  Philip  Livingston,  signer  of  the 
declaration  of  independence.  As  a  yonth  he  was  a  favorite  of  his  grand- 
mother, Sarah  Yan  Brugh.  Graduating  with  the  first  honors  from 
Yale  College,  at  the  age  of  eighteen,  he  devoted  himself  to  the  study  of 
the  law,  first  under  James  Alexander  and  then  under  AVilliam  Smith, 
being  admitted  to  the  bar  in  1748.  He  advanced  to  the  front  of  the  pro- 
fession and  became  known  as  "  the  presby terian  lawyer."  He  continued 
to  practice  in  this  state  for  twelve  years,  during  three  of  which  he  served 
in  the  legislature  as  a  representative  from  the  manor. 

He  removed  in  1760  to  Elizabethtown,  i\ew  Jersey,  building  a  resi- 
dence which  became  historically  famous  as  "  Liberty  Hall."  There  John 
Jay  came  in  1774  to  wed  Mr.  Livingston's  daughter,  Sarah  Yan  Brugh, 
and  in  1789  Mrs.  Washington,  while  on  her  way  to  meet  her  husband 
after  his  inauguration,  was  his  guest.  William  Livingston  was  one  of 
the  most  eminent  revolutionary  patriots  and  statesmen  of  New  Jersey, 
He  represented  the  province  in  the  1st,  2d  and  3d  continental  con- 
gresses, but  was  prevented  from  signing  the  declaration  of  independ- 
ence by  his  assumption,  in  June,  177G,  of  the  position  of  brigadier-gen- 
eral and  commander-in-chief  of  the  New  Jersey  militia,  to  resist  an  ex- 
pected British  invasion.  He  was  the  first  governor  of  the  State  of  New 
Jersey,  elected  in  August,  1776.  As  governor  he  took  a  decided  attitude 
in  opi^osition  to  slavery,  recommending  its  abolition  in  1777,  and  liber- 
ating his  own  slaves  as  a  matter  of  principle  and  example.  He  also  ob- 
tained the  passage  of  the  New  Jersey  act  of  1786,  prohibiting  slave 
importation.  He  was  a  member  of  the  federal  constitutional  convention. 
He  declined  important  offices  under  the  provisional  government  of  the 
states. 

He  was  conspicuously  connected  with  leading  learned  societies,  and 
possessed  noteworthy  intellectual  and  literary  abilities.  He  opposed 
the  creation  of  an  American  episcopate,  and  upon  being  chosen  a  trus- 
tee of  King's  (Columbia)  College  in  1751  refused  to  serve  because  of 
the  requirement  that  the  president  of  that  institution  should  be  a  divine 
of  the  Church  of  England.  He  was  for  a  time  president  of  the  celebrated 
Moot  club  of  lawyers,  and  he  was  a  collaborator  with  William  Smith 
in  the  preparation  of  "  A  Digest  of  the  Laws  of  New  York,  1601-1762." 
His  "  Life  and  Letters  "  was  published  in  1833  by  Theodore  Sedgwick, 
Junior. 

OOMIS,  ARPHAXAD   (born    in   Winchester,    Connecticut, 

April  9,  1798  ;  died  in  Little  Falls,  New  York,  September  15, 

1885),  removed  with  his  parents  at  an  early  age  to  Herkimer 

county,  New  York.     He  worked  on  a  farm  until  fourteen, 

when  he  became  a  district  school  teacher.     He  studied  law  at  Water- 


IlISTOKY    OF   TlIK    IJK.NCII    AM)    HAU    (»K    NKW     V(.|:K  AO^^t 

tovni  and  Sackctt's  1  [alitor,  and  after  his  admission  to  tlie  bar  Ix'^an 
I)ractic('  at  Sackett's  Harbor,  in  1827  ho  hx-ated  at  Little  Fails. 
Hotwcen  1827  and  18.37  he  held  the  oflioes  of  county  jud^^*;  and  snr- 
ro<j:at(>  of  Herkimer  county,  and  from  1835  to  1840  was  "first  judge  "  of 
the  same  county.  In  18:}7  he  was  the  successful  demcjcialic  candidate 
for  congress,  and  served  his  term  wdiih^  remaining  first  judge.  He  was 
elected  to  the  assembly  in  1841,  and  was  a  member  of  the  constitutional 
convention  of  184(5. 

lint  the  most  notable,  service  of  Judge  Loomis  was  in  connection 
with  the  code  revision  of  1847.  In  1842  he  had  been  chairman  of  the 
assembly  judiciary  committee,  and  in  that  capacity  liad  prepared  u  bill 
designed  "to  improve  the  administration  of  justice."  lie  became 
known  as  an  advocate  of  legal  refornuitive  measures,  and  upon  the 
selection  of  the  commission  to  revise  the  code  of  practice,  in  1847  he 
was  named  as  one  of  the  commissioners.  Nicholas  Hill  and  David 
Graham  were  originally  named  with  him  ;  Hill  soon  resigned,  however, 
and  David  Diulley  Field  was  appointed  in  his  place.  The  code  of 
procedure  recommended  by  the  commission,  as  thus  constituted,  was 
enacted  by  the  legislature,  going  into  effect  in  1848. 

Judge  Loomis  displayed  unusual  abilities  as  a  public  speaker.  He 
wrote  much  on  political  subjects,  and  was  the  author  of  a  "  Historic 
Sketch  of  the  New  York  System  of  Law  Reform  "  (Little  Falls,  New- 
York,  1879). 


ORD,  DANIEL  (born  in  Stonington,  Connecticut,  September 
2,  1795  ;  died  in  New  York  City,  March  4,  1868),  is  unfortu- 
nate, so  far  as  fame  goes,  because  of  the  strictly  professional 
character  of  his  pre-eminence.  He  closely  adhered  to  that 
tradition  of  the  New  York  bar  that  confines  the  lawyer  to  his  profes- 
sion and  excludes  him  from  the  easier  honors  of  the  politician  which, 
although  frequently  far  from  being  an  indication  of  merit  or  of  the 
possession  of  abilities  that  have  been  a  blessing  to  the  community 
instead  of  a  bane,  yet  seem  to  be  the  only  evidences  of  legal  talent  which 
the  American  public  recognize  and  which  suffice  to  perpetuate  the 
memory  of  a  great  lawyer.  The  brevity  of  treatment  that  the  lack 
of  such  details  necessitates,  in  a  mere  outline  of  the  points  of  historic 
interest  in  his  public  career,  may  very  readily  convey  a  false  impression 
in  such  a  case  as  that  of  Daniel  Lord.  To  correct  this  it  may  be  briefly 
stated  that  he  rose  to  the  highest  professional  standing,  and,  among  the 
brilliant  lawyers  of  the  New  York  bar  a  generation  ago,  deserves  to  be 
named  with  four  or  five  leaders,  including  Charles  O'Conor,  James  T. 
Brady,  and  William  Curtis  Noyes. 

Cfraduated  from  Yale  College  in  1814,  he  studied  law  with  George 
Griffin  of  New  Y'ork  City,  attended  the  law  school  at  Litchfield,  Con- 
necticut, and  was  admitted  to  the  New  York  bar  in  1817.     He  began 


406  HISTORY   OF  THE  BENCH    AND   BAR   OF  NEW   YORK 

practice  in  the  City  of  New  York,  where  he  always  remained,  achiev- 
ing such  distinction  that  it  could  be  said  of  him  that  "  for  forty  years 
previous  to  his  death  there  were  few  great  civil  cases  before  the  United 
States  or  New  York  state  courts  in  which  he  was  not  retained." 

He  distinguished  himself  in  the  United  States  Supreme  Court  in 
the  case  of  the  prize  ship,  Hiawatha,  involving  the  questions  of  block- 
ade and  prize,  was  counsel  in  the  famous  cases  growing  out  of  the  great 
lire  in  New  York  City  in  1836  and  the  cases  arising  out  of  the  notable 
panic  of  1837,  and  also  argued  the  historic  litigations  of  the  Methodist 
and  Dutch  Reformed  churches,  the  insurance  cases  involving  the  point 
of  general  average,  the  Mason  and  Phelps  will  contest  and  the  will 
case  connected  with  the  establishment  of  the  Leake  and  Watts  Orphan 
House. 

Throughout  his  long  career  Mr.  Lord  persistently  refused  the  many 
public  offices  which  his  high  professional  rank  brought  easily  within 
his  grasp.  

ORB,  GEORGE  DE  FOREST  (born  in  New  York  City,  Nov- 
ember 21,  1833  ;  died  there,  after  a  brief  illness,  March  3, 
1892),  was  the  younger  son  of  the  preceding  and  of  his  wife, 
Susan,  daughter  of  Lock  wood  de  Forest,  of  New  York.  His 
grandfather.  Doctor  Daniel  Lord,  was  a  well-known  physician  of  this 
city  in  the  early  part  of  the  present  century.  Mr.  Lord  pursued  his 
preparatory  studies  partly  in  New  York  and  partly  in  Fairfield,  Con- 
necticut, where  his  parents  spent  their  summers.  In  1851  he  entered 
Yale  College  and  was  graduated  with  high  honors  in  the  now  famous 
class  of  1854,  delivering  the  Latin  salutatory  at  commencement.  After 
a  year  spent  in  foreign  travel,  he  entered  the  Harward  Law  School,  com- 
pleted the  course  of  study,  and  was  admitted  to  the  bar  in  New  York 
City  in  1859,  the  same  year  becoming  a  partner  in  the  firm  of  Lord, 
Day  &  Lord,  composed  of  his  father,  his  brother,  Daniel  D.  Lord,  and 
his  brother-in-law,  Henry  Day.  Of  this  firm  he  continued  to  be  a 
member  to  the  time  of  his  death. 

Upon  the  outbreak  of  the  civil  war,  although  deeply  engrossed  in 
the  practice  of  his  profession,  Mr.  Lord  was  instrumental  in  the  forma- 
tion of  the  22d  regiment  of  the  national  guard,  became  1st  lieutenant  of 
Company  G,  and  was  with  the  regiment  during  its  service  in  the  field. 

While  he  was  never  brought  before  the  public  in  sensational  cases, 
the  respect  and  esteem  with  which  he  was  universally  regarded,  not 
only  by  the  members  of  the  bar  but  by  all  who  knew^  him,  were  clearly 
apparent  in  the  deep  feeling  shown  on  the  occasion  of  his  death.  Few 
men  so  enjoyed  the  profound  respect  and  confidence  of  all  with  whom 
he  had  any  dealings.  While  he  never  held  or  sought  public  office, 
nor  was  ever  prominently  connected  with  great  public  enterprises,  he 
was  an  accomplished  lawyer  of  the  highest  standing  in  his  profession. 
He  died  in  the  zenith  of  his  professional  career. 


lUSTOKV    OK   TIIK    MKNCII    AND    HAIJ    OK    N  K\V    VOUK  407 

|r-r^g|()TT,  JOHN  A.  (boru  in  182n  ;  diod  in  Flatbush,  Lon^r  Island, 
Ikpit?  July  L^O,  1878),  wan  graduated  from  Union  (Joll('<r('  in  \H2:i, 
|L^r«i/  and,  after  studying  law  and  being  adnntted  to  tln^  bar,  began 
l)ractice  in  tlie(Mty  of  Brooklyn.  He  was  active  both  as  a  leg- 
islator an(l  upon  the  bench.  lie  was  county  judge  of  Kings  (!ounty  be- 
tween 1838  and  1842  ;  in  1841  was  a  niendx'i-  of  the  assembly,  and  from 
1842  to  184(5 a  member  of  the  state  senate;  sat  upon  the  state  Supreme 
Court  bench  between  1857  and  18()5  ;  was  in  ISOi*  apjjointed  to  fill  a  short 
term  as  judge  of  the  (Jourt  of  Appeals;  between  1870  and  1875  served 
upon  the  commission  of  appeals,  and  in  1875  was  one  of  the  commis- 
sioners appointed  to  formulate  a  measure  for  the  uniform  govemment 
of  all  the  cities  of  the  State  of  New  York. 

Kis  opinions  will  be  found  in  the  reports  of  the  various  courts  of 
which  he  was  a  justice.  In  Ids  later  years  he  was  engaged  in  business 
enteri)rises.  at  the  time  of  his  death  being  president  of  the  Flatbush 
&  Coney  Island  railroad. 


fOWREY,  GROSVENOR  P.  (born  in  North  Egremont,  Mas- 
sachusetts, September  25, 1831 ;  died  in  New  York  City,  April 
21,  1893),  was  the  son  of  William  Lowrey,  a  native  of  Clave- 
rack,  Cohunbia  county,  who  was  of  Dutch  descent,  and  of 
Olive  Rouse,  of  Egremont.  He  was  graduated  from  the  law  depart- 
ment of  Lafayette  College,  Easton,  Pennsylvania,  and  was  admitted  to 
the  bar  in  Easton  in  1854.  Locating  first  in  the  west,  he  returned  in 
1857  to  the  east,  settling  in  New  York  City,  w^here  he  diligently  prac- 
ticed his  profession.  During  the  greater  part  of  his  practice  he  was  a 
member  of  the  firm  of  Porter,  Lowrey,  Soren  &  Stone,  the  senior  mem- 
ber being  the  late  John  K.  Porter. 

Mr.  Lowrey  was  for  fifteen  years  general  counsel  of  the  Western 
Union  Telegraph  Company  (from  its  organization  until  1882)  and  at 
different  times  was  counsel  for  the  Metropolitan  Railway  Company, 
Wells,  Fargo  &  Company,  the  North  American  Steamship  Company, 
the  United  States  Express  Company,  the  Baltimore  &  Ohio  Telegraph 
Company,  the  Singer  Manufacturing  Company,  the  Union  Ferry  Com- 
pany, the  Knickerbocker  Trust  Company,  and  other  important  corpo- 
rations. He  died  universally  esteemed,  and  recognized  as  one  of  the 
leading  members  of  the  bar. 


^^^UDLOW,  GEORGE  DUNCAN,  was  the  last  of  the  royal 
Supreme  Court  justices  of  New  York.  He  was  originally 
apprenticed  to  an  apothecary,  but  disliking  that  pursuit,  he 
studied  law.  Though  an  assiduous  student,  his  friends  gen- 
erally predicted  his  failure,  as  he  had  a  serious  impediment  in  his 
speech,  and  were  very  much  suiprised  at  seeing  him,  when  he  appeared 
in  his  first  cause,  acquit  himself  with  an  ease  and  fluency  altogether 


408  niSTOEY    OF   THE   BEIS^CH    AXD   BAR   OF   NEAV   YORK 

unexpected.  In  commencing  practice  lie  gave  his  attention  exclusively 
to  commercial  matters,  and  acquired  so  much  i)roficiency  that  he  was 
constantly  employed,  either  as  an  arbitrator  in  deciding  mercantile 
disputes  or  in  the  adjustment  and  settlement  of  complicated  mercan- 
tile transactions.  This  drew  him  into  commercial  pursuits  and  specu- 
lations, and  having,  by  honest  industry  and  great  assiduity,  acquired, 
at  a  comparatively  early  age,  an  ample  fortune,  he  retired  to  a  hand- 
some estate  which  he  had  purchased  upon  Long  Island.  Shortl}^  after 
his  retirement  he  was  appointed  judge  of  the  Court  of  Common  Pleas, 
in  which  he  gave  so  much  satisfaction  that  in  1769  he  was  made  a 
puisne  judge  of  the  Supreme  Court.  Though  he  labored  under  the 
disadvantage  of  deafness,  in  addition  to  the  impediment  in  his  speech, 
he  was,  nevertheless,  an  excellent  judge,  a  man  of  great  integrity,  of 
extensive  information,  and  in  private  life  a  most  agreeable  and  enter- 
taining companion. 

At  the  breaking  out  of  the  Revolution,  he,  with  Chief-Justice 
Horsmanden,  Justice  Thomas  Jones,  and  Jauncey,  master  of  the  rolls, 
adhered  to  the  cause  of  the  crown,  while  Justice  Robert  R.  Livingston 
joined  the  revolutionary  party.  The  royalists  retained  possession  of 
New  York,  Long  Island,  and  a  part  of  Westchester,  and  within  these 
limits  the  judges  who  had  adhered  to  the  royal  cause  continued  to 
exercise  jurisdiction.  Justices  Jones  and  Ludlow  retired  to  their 
farms  on  Long  Island,  but  Horsmanden  remained  in  the  City  of  New 
York,  and  continued  to  exercise  his  functions  until  his  death,  in  1778, 
when  the  sole  administration  of  judicial  affairs  was  entrusted  to  Jus- 
tice Ludlow.  Two  years  after,  in  1780,  Ludlow,  in  addition  to  his 
powers  as  justice  of  the  Supreme  Court,  was  created  master  of  the 
rolls,  with  power  to  "  hear  and  determine  controversies  until  civil  gov- 
ernment should  be  restored."  He  also  acted  as  judge  in  admiralty,  and 
was  appointed  superintendent  of  police  for  Long  Island.  In  the  same 
year,  1780,  Robertson,  the  last  of  the  royal  governors,  issued  a  concili- 
atory proclamation,  announcing  that  he  had  brought  out  a  royal 
appointment  for  supplying  the  place  of  chief -justice  ;  and  that  as  soon 
as  the  public  exigencies  would  permit,  he  would  give  an  order  for 
opening  the  courts  of  judicature,  and  convene  the  assembly.  But  his 
proclamation  produced  no  effect,  and  he  did  nothing  under  it  until  the 
following  year,  when  he  held  a  court  of  chancery,  in  person,  about  once 
every  month,  from  the  24th  of  January,  1781,  until  the  9th  of  June, 
1783.  But  little  can  now  be  ascertained  resj)ecting  judicial  proceedings 
in  this  part  of  the  state  during  this  period,  as  the  loyalists  carried  off 
the  records  relating  to  it,  which  had  been  kept  in  the  City  of  New  York. 
It  is  merely  known  that  Justice  Ludlow  continued  to  act  as  the  prin- 
cipal judge  until  the  close  of  the  war,  when  he  went  to  New  Brunswick, 
and  became  chief -justice  of  that  province.' 

•  This  sketch  Is  reproduced  from  Judge  Daly's  "  Historical  S)<i'tcli  of  llic  Jiuiicial  Triliuimis  of  New  Yorli," 
pp.  54-55. 


IIIK    ISKNCM    AMt    r.AU    OF    NKW    VdKK 


w'IcC'OIjN,  WILLIAM  T.  (born  in  Oyster  Hay,  lym^  Islan.l,  in 
3  ITStl;  (lied  tliri-c,  .Inly  ;22,  ISTS),  was  one  of  the  ])roniiiieiit 
M  men  of  the  New  York  bar  dnring  tlie  first  lialf  of  tlie  nine- 
teentli  centnry.  Wiien  lie  located  in  the  city  and  made  his 
resi(h'nce  in  Warren  street,  that  section  was  a  suburb,  lie  l)ecame 
prominent  in  his  profession,  and  was  sought  repeatedly  for  oflice  until 
the  creation  in  May,  IS.'U,  of  tlie  office  of  vace-chancellor  of  the  1st  cir- 
cuit, of  which  he  became  the  first  incumbent,  and  in  wliicli  he  con- 
tinued until  the  Court  of  Chancery  was  abolislied  by  the  constituticm 
of  1S4().  He  was  elected  justice  of  the  Supreme  Court  in  the  2d  dis- 
trict in  1S47,  and  served  a  full  term,  after  whicli  he  lived  a  retired  life 
in  the  place  of  his  birth.  He  was  for  a  time  counsel  for  the  Chemical 
bank.  As  a  jndge  he  was  recognized  as  exceptionally  patient  and 
l)ainstaking  in  his  Avork.  He  was  one  of  the  founders  of  the  Law 
Institute  Library. 


CUE,  ALEXANDER  (born  in  Matamoras,  Mexico,  in  1827; 
died  in  Brooklyn,  New  York,  April  2,  1889),  spent  his  first 
seven  years  in  the  place  of  his  birth.  In  1834  his  parents 
removed  to  Brooklyn,  New  York,  where  they  formerly  had 
resided.  He  entered  Columbia  College,  was  graduated  from  that 
institution  in  1846,  and  went  to  Europe  to  complete  his  studies.  Re- 
turning to  Brooklyn  he  studied  law,  began  practice,  and  soon  after 
was  appointed  assistant-district-attorney  of  Brooklyn.  Active  in 
democratic  politics,  he  ran  in  1856  for  district-attorney  of  Kings 
county,  but  Avas  defeated.  His  practice  became  important  and  his 
ability  recognized.  Two  years  later  he  was  appointed  corporation 
counsel,  and  he  served  three  tenns.  In  1870  he  was  elected  a  judge  of 
the  City  Court  of  Brooklyn  for  a  term  of  fourteen  years.  In  1883, 
upon  the  retirement  of  Judge  Wilson,  he  became  chief-judge,  serving 
the  remainder  of  his  term  in  that  capacity.  His  decisions  were  pre- 
pared with  great  care  and  seldom  overruled.  One  of  them,  in  the 
famous  Beecher-Tilton  case,  which  had  been  overruled  by  the  general 
term,  was  confirmed  by  the  Court  of  Appeals. 

In  1885  he  was  appointed  by  President  Cleveland  solicitor  of  the 
treasury.  He  remained  in  Washington  two  years,  after  which  he  was 
named  to  succeed  Assistant-Treasurer  Charles  J.  Cauda  in  New  Y'ork 
Citv.    He  held  this  oflBce  at  the  time  of  his  death. 


[cKEON,  JOHN  (born  in  Albany,  New  Y^'ork,  in  1808  ;  died  in 
New  York  City,  November  22,  1883),  was  educated  at 
Columbia  College,  being  graduated  in  1825,  and  after  a  course 
of  legal  study  and  his  admission  to  the  bar  began  practice 
in  New  Y'ork  City.  He  was  active  in  politics,  and  acquired  his  reputa- 
tion as  a  lawyer  chiefly  as  a  vigorous  public  prosecutor,  holding  office 


410  HISTORY   OF  THE   BENCH   AND   BAR  OF   NEW   YORK 

of  this  character  during  a  large  part  of  his  professional  career.  He 
was  a  member  of  the  assembly  from  1832  to  1884,  a  member  of  congress 
from  1835  to  1837,  and  again  from  1841  to  1843,  and  in  1846  became 
district-attorney  of  the  County  of  New  York  by  appointment.  The 
office  becoming  elective  the  following  year,  he  was  the  successful  candi- 
date. He  was  noted  for  his  able  and  merciless  prosecution  of  guilty 
offenders,  and  distinguished  himself  in  many  sensational  cases.  One 
of  the  most  remarkable  of  these  was  the  case  of  the  notorious  Madame 
Restell,  who  had  for  many  years  maintained  a  fashionable  abortion 
establishment  on  Fifth  avenue. 

Subsequently  to  his  term  of  three  years  as  district-attorney  of  the 
county  Mr.  McKeon  succeeded  Charles  O'Conor  as  United  States 
attorney  for  the  southern  district  of  New  York,  filling  out  the  un- 
expired term  of  the  latter.  After  returning  to  private  practice  in  1858, 
he  was  retained  to  conduct  many  notable  prosecutions.  These  included 
the  trial  of  the  persons  charged  with  attempting  to  recruit  soldiers 
for  the  British  service  in  the  Crimean  war,  the  prosecution  of  Captain 
Westervelt,  of  the  ship  Nightingale,  for  carrying  on  the  slave-trade,  and 
the  case  of  the  filibusters  aboard  the  captured  ship  Northern  Light. 
Two  years  before  his  death,  in  1881,  Mr.  McKeon  was  again  elected  to 
the  office  of  district- attorney  of  the  County  of  New  York. 


AN,  ALBON  PLATT  (born  in  Constable,  Franklin  county.  New 
York,  January  20,  1811 ;  died  in  New  York  City,  March  30, 
1891),  was  the  son  of  Doctor  Albon  Man  and  Maria  Piatt,  and 
descended  from  interesting  ancestry.'  After  his  father's  death 
in  1820  the  family  removed  to  Plattsburg.  At  sixteen  years  of  age  Mr. 
Man  began  the  study  of  law  at  Covington,  New  York,  with  his  brother-in- 
law.  Judge  Parkhurst,  subsequently  entering  the  office  of  Judge  William 
Kent,  of  New  York  City.  During  this  period  he  made  a  trip  to  the 
Mediterranean  in  a  sailing  vessel.  He  was  admitted  to  the  bar  at 
Utica  in  August,  1832,  and  began  practice  in  New  York  City  in 
partnership  with  Stephen  C.  Williams— an  association  which  continued 
until  1837,  when  he  became  a  partner  of  "Walter  Edwards.  On  May 
20,  1857,  a  new  partnership  was  formed  with  John  E.  Parsons,  and  it 

'  Reverend  Samuel  Man,  a  graduate  from  Harvard  father,  Zephaniah   Piatt,  was  also   a   soldier   in  tlie 

College  in  1665,  was  his  ancestor.     His  grandfather,  Revolution,  and  at  one  time  a  prisoner  in  the  old  hulk. 

Doctor  Ebenczer  Man,  was  a  surgeon  in  the  continental  Jeivey.     Tlie  founder  of  the  family  in  this  country, 

army  during  the  Revolution.      His  father,  also  a  phy-  Richard  Piatt,  was  one  of  the  original  settlers  of  Mil- 

sician,  was  born  iu  Kent,  Connecticut,   in  1770,  and  ford,  Connecticut.    Captain  Nathaniel  Piatt,  with  three 

settled  in  Franklin  county,  New  York,  in  March,  1803,  brothers,  founded  Plattsburg  in   1784.    One  of  these 

where  he  practiced  medicine,  engaged  in  the  lumber  brothers,  Zephaniah  Piatt  (q.  v.),  was  a  member  of  two 

business  with  his  brother,  General  Alric  Man,  and  held  revolutionary  consjresses,  the  New  York  constitutional 

the  office  of  "  lirst  judge  "  of  the  county  for  several  convention  of  1776,  the  committee  of  safety  In  1777,  and 

years.     Doctor  Man's  sister  was  the  wife  of   Hugh  was  state  senator  and  first  judge  of  Dutchess  county. 

McCulloch,    secretary   of    the   treasury.     Mr.    Man's  His  son  was  Judge  Jonas  Piatt  (q.  v.).      Mr.   Man's 

mother  was  the  daughter  of  Captain  Nathaniel  Piatt,  a  grandmother,  Phoebe  Smith,  was  of  the  old  family  of 

revolutionary  soldier,  who  participated  in  the  campaigns  that  name  of  Smithtown,  Long  Island, 
on  Long  Island  and  in  Westchester  county.  Her  grand- 


iiisioitv   OF   iiiK  1!i:n(11   and   km:  <»i    mw    m>i:k  III 

coiitiniuMl  without  int('rriii)ti()n  until  May  1,  I8S4,  the  linn  nam*'  of  Man 
iSr  Parsons  being-,  with  two  exc('j)fions,  "theoltl«'st  unchan^<'(l  ])aitnrr- 
ship  name  in  the  i)i()l'ession  in  New  York." 

Many  of  Mr.  Man's  most  interesting  cases  in  hiter  yeais  were  in 
connection  with  attempts  to  estahlisli  railways  on  Broadway,  New 
York  City.  As  counsel  of  the  pro[)erty  ownei's  lie  appeared  before  a 
Supreme  Court  commission  in  successful  oi)position  to  the  petition  of 
the  Hroadway  Underground  Connecting  Koad  for  the  right  to  tunnel 
Broadway.  Upon  the  reorganization  of  the  corporation  as  the  Arcade 
Kailway  Company,  with  the  revised  scheme  of  an  arcade  railway  on 
]?roadway,  he  brought  suits  to  restrain  construction,  and  in  1S89  ob- 
tained a  decision  in  the  Court  of  Appeals  declaring  the  charter  of  the 
company  invalid. 

Mr.  Man  was  one  of  the  active  founders  of  tlie  Bar  Association  of 
New  Y'ork,  a  member  of  its  executive  committee  and  the  lirst  treasurer, 
lie  was  subsequently  vice-president,  and  was  concerned  in  nianj^  of  its 
important  reformatory  proceedings.  He  was  a  republican,  a  member 
of  the  Union  League  Club  of  New  York  City,  and  of  the  Madison 
square  church.  His  family  is  remarkable  for  its  number  of  lawyers. 
Of  the  five  children  by  his  lirst  wife,  Mary  L.  Brower,  the  sons, 
William  and  Frederick  II.,  are  well-known  lawyers  of  New^  Y'ork  ; 
while  of  the  live  children  by  his  i^econd  wife,  a  daughter  of  Alric 
Ilubbell,  of  Utica,  the  three  sons,  Henry,  Alric  and  Edward,  are  lawyers. 


VRCY,  WILLIAM  LEARNED  (born  in  Southbridge,  Massa- 
chusetts, December  12,  1786 ;  died  in  Ballston  Spa,  New 
Y'ork,  July  4, 1857),  was  an  able  lawyer  and  jurist,  although  his 
political  career  and  services  to  the  state  and  nation  as  United 
States  senator,  governor  of  New  Y^ork  and  cabinet  officer  under  Polk 
and  Pierce  overshadow  his  legal  character. 

He  Avas  graduated  from  Brown  University  in  1808,  studied  law  at 
Troy,  New  Y'ork,  and  began  the  practice  of  law  in  that  city.  Upon 
the  outbreak  of  the  war  of  1812  a  company  of  infantry  of  which  he  was 
lieutenant  offered  itself  to  the  governor  of  the  state  and  was  sent  to  the 
Canadian  frontier,  where  it  obtained  the  honor  of  the  first  capture  of  a 
British  flag  in  the  war.  At  the  expiration  of  his  term  of  enlistment  he 
resumed  his  law  practice.  He  was  the  political  foe  of  De  Witt  Clinton, 
which  caused  his  removal  from  the  office  of  recorder  of  Troy,  to  which 
he  had  been  appointed  in  1816.  Becoming  editor  of  the  Troy  Budget, 
he  made  it  an  influential  democratic  journal,  affiliated  with  the  Van 
Buren  faction.  In  1821  he  became  adjutant-general  of  the  state,  and 
in  1823  was  comptroller.  In  1829  he  was  appointed  a  Supreme  Court 
justice,  and  he  remained  upon  the  bench  until  his  election  to  the  United 
States  senate  in  1831. 


412  HISTORY   OF   THE   BENCH   AND   BAR    OF   NEW   YORK 

Judge  Marcy  delivered  interesting  decisions  in  the  Supreme  Court 
in  a  number  of  important  cases.  The  most  memorable  were  those  ren- 
dered in  the  trials  of  the  alleged  abductors  and  murderers  of  "William 
Morgan,  who  had  mysteriously  disappeared  from  his  home  after  it 
became  known  that  he  was  about  to  publish  a  book  in  which  he 
claimed  to  expose  the  secrets  of  the  fraternity  of  freemasons.  These 
suits  came  before  Judge  Marcy  on  appeal.'  Some  convictions  resulted 
on  the  charge  of  abduction,  but  the  charge  of  murder  was  never  estab- 
lished judicially.  Public  sentiment,  however,  found  political  expres- 
sion leading  to  the  formation  of  an  anti-masonic  party  in  this  and  other 
states.  Only  in  Vermont  was  state  control  secured  by  the  agitators, 
and  in  a  few  years  the  movement  subsided  even  there. 

The  two  years  of  his  service  in  the  United  States  senate,  from  1831 
to  1833,  added  greatly  to  Judge  Marcy's  political  prestige.  He  ,vas 
chairman  of  the  judiciary  committee,  and  distinguished  himself  in 
important  debates  by  speeches  in  opposition  to  Clay  and  "Webster. 
Having  been  elected  governor  of  New  York  in  1833,  he  resigned  from 
the  senate  and  remained  governor  for  three  successive  terms,  until  1839, 
when  Seward  defeated  him  for  re-election.  From  1839  to  184-2,  by  ap- 
pointment of  President  Van  Buren,  he  was  one  of  the  commissioners  for 
the  adjudication  of  the  claims  against  the  Mexican  government.  He 
was  chairman  of  the  New  York  democratic  state  convention  in  1843, 
was  active  in  the  Polk  campaign,  and  upon  the  election  of  the  latter 
to  the  presidency  was  appointed  secretary  of  war.  He  occupied  that 
office  during  the  memorable  period  of  the  Mexican  war.  His  able 
administration  of  the  i3ortfolio  received  no  commendation  from  the 
Avhig  generals  in  the  field,  Scott  and  Taylor,  however,  who  professed 
that  their  movements  had  been  hindered.  Under  this  aggravating- 
attack  Marcy  finally  broke  silence  and  entered  upon  a  defence  of  his 
conduct  of  the  war  department,  which  resulted  in  the  complete  dis- 
comfiture of  his  opponents.  Upon  the  retirement  of  Polk  Marcy  re- 
sumed the  practice  of  law,  appearing  in  notable  cases,  but  in  1853  he 
was  once  more  called  into  the  public  service  as  secretary  of  state  under 
President  Pierce. 

His  policy  on  questions  of  state  as  a  member  of  these  two  cabinets 
gave  to  him  liigh  rank  among  American  statesmen.  While  secretary 
of  war  his  diplomatic  abilities  were  of  great  advantage  to  the  country 
in  the  settlement  of  the  Oregon  boundary  dispute.  His  discussion  as 
secretary  of  state  of  such  questions  as  the  dues  for  navigation  of  the 
Danish  sound,  the  enlistment  of  volunteers  for  foreign  wars,  and  the 
status  of  the  Central  American  states  in  relation  to  this  country,  in 
view  of  the  traditions  associated  with  the  Monroe  doctrine,  were  valu- 
able contributions  to  the  American  state  papers,  and  were  influential 

>  See  4  Wendell,  229— case  of  People  vs.  Mather.    The  the  law  of  trials,  the  impanelling  of  juries,  and  the  sub- 
defendant,  accused  of  coniapiracy,  had  been  acquitted  ject  of  conspiracies.    It  is  a  luonunient  of  research  and 
and  the  prosecution  asked  for  a  new  trial.    Judae  Mar-  laborious  citation  of  authorities. 
cv's  opinion  covers  twenty-seven  pages  and  discusses 


IIIsroUY    OF     IIIK    ItKNCII     A.M>    l!\IJ    oK    NKW     VOKK  41:{ 

ill  till'  proniolioii  of  wetthnl  i)iil)li('  opinion.  KspcciMlIy  si^fniOcnnt  \v;is 
Ills  coiiivspondence  with  the  Aii.^trian  government  in  tiie  cii.seof  iMnrtin 
Koszta,  involving  entirely  new  issues  in  internjitional  law.  On  domestic 
questions  his  views  were  always  ably  presented,  although  liis  judg- 
ment has  not  in  every  case  been  vindicated.  He  favored  the  enactment 
of  the  tarilF  of  1846.  The  inevitable  development  of  the  slavery  ques- 
tion to  a  iinal,  decisive  settlement  he  did  not  foresee,  but  believed  that 
a  policy  of  strict  neutrality  and  non-interference  would  lead  to  a  gradual 
subsidence  of  the  agitation. 

Secretary  Marcy's  death  was  sudden  and  peculiar,  lie  retired  to 
private  life  at  the  close  of  the  Pierce  administration.  Four  months 
later  lie  was  found  dead  in  his  library  one  evening  with  an  open  book 
before  liini. 


jARTIN,  ISAAC  P.  (born  in  1815;  died  in  Fort  Wa.shington, 
iSew  York,  September  27,  1894),  was  admitted  to  the  bar  at 
the  age  of  twenty-two  and  early  became  a  successful  practi. 
tioner  in  New  York  City.  His  law  firm  was  known,  succes- 
sively, as  Martin  &  Strong,  Martin,  MacClay  &  Strong,  Martin,  Strong 
&  Smitb,  and  Martin  &  Smith.  During  the  panic  of  1ST3  Martin  & 
Smith  were  attorneys  for  the  Wall  street  firm  of  George  B.  Grinnell  & 
Co.,  which  had  long  been  known  as  one  of  the  most  solid  financial 
establishments  in  New  York,  transacting  an  enormous  business  as 
agents.  At  this  time  Grinnell  &  Co.  held  for  Clark,  Schell  &  Co., 
bankers,  two-thirds  of  8l7,<tOO,000  of  railway  securities,  upon  which 
the  former  firm  had  obtained  large  loans,  having  a  credit  margin  of 
§2,000,000.  When  the  panic  came  the  market  value  of  the  securities 
fell  and  the  margin  of  82,000,000  was  wiped  out.  Under  the  rule  of 
the  stock  exchange  hopeless  ruin  impended.  To  the  astonishment  of 
the  creditors  and  the  stock  exchange  Martin  &  Strong,  as  attorneys  for 
Grinnell  &  Co.,  began  proceedings  in  bankruptcy  and  applied  to  the 
courts  for  the  appointment  of  an  assignee.  This  course  was  uni)rece- 
dented  in  the  history  of  speculation  and  at  once  tied  up  a  large  part 
of  Wall  street's  stock  in  trade.  Not  a  single  share  of  the  securities  that 
Grinnell  &  Co.  held  pledged  as  security  could  be  sold  pending  the 
assignee's  appointment.  The  stock  exchange  suspended  operations 
for  two  weeks.  Meantime  the  panic  subsided,  confidence  was  restored, 
and  Grinnell  &  Co.  not  only  met  their  obligations  to  the  extent  of 
$15,000,000,  but  were  read}'  to  come  out  of  bankruptcy  with  a  surplus 
fund  of  $750,000. 

Mr.  Martin  accumulated  a  large  fortune. 


414  HISTORY   OF   THE   BE::fCn   AND   BAR   OF   NEW   YORK 

|ARVIN,  DUDLEY  (born  in  Lyme,  Connecticut,  May  6,  1786  ; 
died  in  Ripley,  Chautauqua  county,  New  York,  June  25, 
1856),  was  educated  in  the  common  schools  and  academies, 
removed  to  Canandaigua,  New  York,  read  law,  and  was  ad- 
mitted to  the  bar  in  1811.  lie  served  four  terms  in  congress  as  a  whig, 
three  of  them  continuously,  from  1823  to  1829,  and  again  from  1847  to 
1849.  Between  these  periods  he  had  removed  to  New  York  City,  where 
he  enjoyed  a  large  law  practice,  but  vested  interests  led  to  his  return 
to  Chautauqua  county  in  1845.  During  his  first  period  in  congress,  as 
second  on  the  committee  having  a  revision  of  the  tariff  under  considera- 
tion, and  in  the  absence  of  the  chairman,  he  drew  up  a  report  on  the 
question  of  a  wool  tariff  which  attracted  wide  attention  and  led  to  the 
"woollen  bill."  In  1847,  commenting  upon  the  president's  message 
concerning  the  Mexican  war,  he  discussed  the  slavery  question  in  torms 
which  were  a  remarkable  forecast  of  the  "irrepressible  conflict."  As  a 
lawyer  he  was  characterized  for  eloquence  of  address  and  acuteness  in 
cross-examination. 


lARYIN,  RICHARD  PRATT  (born  in  Fairfield,  Herkimer 
county,  New  York,  December  23,  1803  ;  died  in  Jamestown, 
New  York,  January  11,  1892),  was  a  lineal  descendant  of 
Reinold  Marvin,  one  of  the  original  settlers  of  Hartford,  Con- 
necticut. Obtaining  a  common-school  education,  he  commenced  the 
study  of  law  in  the  office  of  George  W.  Scott  in  Newark,  Wayne 
county.  He  afterward  studied  with  Mark  H.  Sibley  in  Canandaigua 
and  with  Isaac  Seeley  in  Cherry  Valley.  He  was  admitted  to  the  bar 
in  New  York  City  (1820),  afterward  settling  in  Jamestown,  where  he 
early  rose  to  prominence  in  the  profession.  In  1835  lie  was  elected  to 
the  assembly,  and  in  1836  and  1838  was  chosen  to  represent  the  31st 
district  in  congress,  serving  throughout  the  whole  of  Van  Buren's  ad- 
ministration. He  was  admitted  to  practice  in  the  United  States  Su- 
preme Court  while  in  Washington  upon  the  motion  of  Daniel  Webster. 
In  1846  he  served  as  a  member  of  the  constitutional  convention.  In 
1847  he  was  elected  a  justice  of  the  Supreme  Court,  and  in  January, 
1855,  he  was  appointed  to  the  Court  of  Appeals.  In  November  of  the 
same  year  he  was  re-elected  to  the  Supreme  Court,  and  in  1863  was  again 
appointed  to  the  Court  of  Appeals.  He  was  chosen  for  the  third  time 
on  the  Supreme  Court  bench  in  1863,  serving  until  1873.  His  judicial 
career  extended  over  a  period  of  more  than  twenty-four  years.  He  was 
one  of  the  best  jurists  of  the  state,  and  was  a  man  of  great  ability  and 
sterling  integrity. 


IlISTOKV    OF    IIIK    IIKNCII     AM)    ItA  U    OK    M;\V     VuKK  41.") 

ATIIKWS,  VINCJKNT  (bom  in  Orange,  New  York,  .Iiin<^  2l>, 
17»!<>;  (lied  in  Rocliester,  New  York,  August  2:},  LS4<;),  after 
receiving  his  education  under  tlie  famous  iNoali  Webster 
studied  law  in  tlie  City  of  New  York,  was  adinitted  to  tlie 
bar,  anil  began  jiractice  in  Elniira,  New  York,  where  lie  became  active 
in  public  life.  He  was  elected  to  tlie  assembly  in  1793  ;  was  a  member 
of  the  state  senate  in  179(5 ;  in  179S  was  commissioner  to  adjust  the 
land  claims  under  the  bounty  provisions  ;  and  was  elected  to  congress 
as  a  federalist  for  the  term  from  1S09  to  ISll.  During  the  three  years 
from  1812  to  1S15  he  was  district-attorney  of  the  .state  of  New  York. 
He  resided  for  a  time  in  Bath,  removing  to  Rochester  later  on.  In  1826 
lie  was  once  more  elected  to  the  assembly,  this  time  from  Monroe 
county,  and  was  chairman  of  the  finance  committee  in  that  body.  Be- 
tween 1831  and  1833  he  was  district-attorney  of  Monroe  county.  He 
was  "  at  the  time  of  his  death  senior  member  of  the  bar  of  western 
New  Y^ork." 


AX  WELL,  HUGH  (born  in  Paisley,  Scotland,  in  1787  ;  died 
in  New  Y^ork  City,  March  31,  1873),  was  brought  to  this 
country  in  childhood  by  his  parents,  and.  in  1808  was  gradu- 
ated from  Columbia  College.  He  studied  law  and  was  ad- 
mitted to  the  bar  of  New  Y'ork  City,  w^here  he  engaged  in  practice. 
In  1814r  he  was  appointed  assistant- judge-advocate-general  of  the 
United  States  army.  Elected  district-attorney  of  New  York  county, 
he  served  continuously  during  the  long  period  of  twenty  years,  from 
1819  to  1839.  Notable  among  the  convictions  which  he  obtained  were 
those  of  the  banker,  Jacob  Barker,  and  the  ship-builder,  Henry  Eck- 
ford — both  well-known  citizens — for  conspiracy  to  defraud  insurance 
companies.  The  poet  Halleck  wrote  some  lines  in  which  he  attacked 
Maxwell  for  his  zeal  in  this  case,  but  the  district-attorney  was  upheld 
by  the  general  sentiment  of  the  community.  From  lS-t9  to  1852  Mr. 
Maxwell  was  collector  of  the  port  of  New  York,  receiving  the  appoint- 
ment as  a  whig.  He  was  president  of  the  Saint  Andrew's  Society,  and 
at  the  time  of  his  death  was  its  oldest  member. 


ILLER,  THEODORE  (born  in  1816 ;  died  in  Hudson,  New 
York,  August  18,  1895),  was  educated  at  the  public  schools 
and  admitted  to  the  bar  in  1837.  He  was  district-attorney  of 
Columbia  county  from  1843  to  1845,  conducting  successfully 
the  prosecutions  against  the  leaders  of  the  anti-rent  agitation.  He  was 
elected  a  justice  of  the  Supreme  Court  in  1801,  and  during  the  last  four 
years  of  his  service  was  presiding  justice  of  the  3d  department.  In 
1874  he  was  elected  to  the  bench  of  the  Court  of  Aj^peals,  from  which 
he  retired  upon  reaching  the  age  limit  in  1886. 


416  HISTOEY   OF  THE  BENCH   AXD   BAR   OF  NE\V   YORK 

I  ILLS,  ISAAC  N.  (born  in  ThomiDson,  Windham  county,  Con- 
necticut, September  10.  1851),  is  descended  from  paternal 
ancestors  who  were  fanners  in  the  town  of  Thompson  from  a 
period  antedating  the  Revolution.  On  his  mother's  side  he 
is  descended  from  a  family  of  Rhode  Island  Quakers,  to  a  branch  of 
which  General  Greene,  of  revolutionary  fame,  belonged. 

At  the  age  of  seventeen  he  entered  the  Providence  Conference  Sem- 
inary, at  Greenwich,  Rhode  Island,  taught  district  school  for  a  term, 
working  evenings  to  keep  up  with  his  class,  and  was  graduated  in  the 
summer  of  1870  at  the  head  of  his  class.  Entering  Amherst  College 
he  took  prizes  during  the  course  in  Latin,  Greek,  philosophy,  physi- 
ology, debate,  and  extemporaneous  speaking,  and  was  graduated  in 
1874  as  valedictorian,  having  also  been  for  two  years  president  of 
his  class.  In  1876  he  w^as  graduated  from  Columbia  College  Law 
School,  and  in  October  of  that  year  was  admitted  to  the  bar  in  jS'ew 
York  City.  He  began  practice  at  Mount  Vernon,  becoming  a  member 
of  the  law  firm  of  Mills  &  Wood,  this  partnership  continuing  until 
1882.  Judge  Mills  won  a  reputation  as  an  exceptionally  successful  trial 
lawyer  and  appeared  in  many  of  the  most  important  litigations  of 
Westchester  county,  including  the  contests  over  the  wills  of  William 
M,  Wallace  and  Alfred  H.  Duncombe,  both  leaving  large  estates,  the 
case  of  Reynolds  against  the  Bank  of  Mount  Vernon,  and  the  investi- 
gation of  the  Westchester  Temporary  Home. 

In  the  fall  of  1883  he  was  elected  to  succeed  Judge  Gifford  as  county 
judge  of  Westchester  county.  In  the  fall  of  1889  he  was  re-nominated 
by  the  republican  party  and  re-elected  by  a  Uirgely  inci'eased  major- 
ity, although  that  party  was  at  that  time  in  a  minority  in  Westchester 
county.     His  judicial  career  has  been  thus  characterized: 

It  is  the  unanimous  verdict  of  the  bar  that  he  possesses  tlie  judicial  tetuperament 
to  a  very  remarkable  degree.  He  always  gives  to  every  lawyer  a  patient  hearing 
and  to  every  question  thorough  consideration  before  rendering  his  decision.  In  the 
trial  of  cases  before  his  court  with  a  jury  he  has  made  a  practice,  where  the  case 
was  at  all  doubtful,  of  entertaining  a  motion  upon  the  minutes  for  a  new  trial  not 
merely  as  a  matter  of  form  but  as  a  matter  of  substance,  and  of  liearing  full  argu- 
ment upon  the  motion,  reviewing  his  decision  and  carefully  examining  for  himself 
the  matters  involved,  and  granting  a  wqw  trial  if  finally  convinced  that  material 
error  has  been  committed.  It  has  also  been  his  practice  in  deciding  any  matter  at 
all  novel  or  intricate  to  file  with  his  decision  a  written  opinion  stating  clearly  the 
grounds  thereof  and  the  reasoning  by  which  his  conclusions  were  reached.  This 
practice  has  been  very  generally  approved  by  the  bar.    His  charges  to  the  jury  have 

been  greatly  commended  for  their  clearness  and  pre-eminent  fairness As 

presiding  judge  of  tlie  Court  of  Sessions,  he  has  conducted  the  trial  of  some  of  the 
most  noted  criminal  cases  ever  tried  in  Westchester  county.  Among  these  are  the 
cases  of  Wing  (murder  in  second  degree),  Warren  (manslaughter).  White  (rape),  and 
Cassidy  (arson).  Each  of  those  cases  occupied  several  days  in  the  trial,  and  were 
tried  by  eminent  counsel  who  raised  every  possible  point,  and  yet  no  ruling  of 
Judge  Mills  in  any  of  those  cases  was  found  to  be  erroneous. 

In  October,  1895,  at  the  close  of  his  second  term,  the  republican 


iiisi()i:v  OK   riiK  Mi;.\(  II   and  i!\i;  of  m;\v   vouk  -ll? 

county  convention  fcndcicd  liiiii  :i  iv-iioiniiKilion.  wliicli  In-  (Ifclincd 
to  accept  for  thv  reason  that  under  the  new  constitution  tlie  county 
judge  of  Westdioster  county  was  dis(iualilied  from  practicing  in  tiie 
Supreme  Court  or  Court  of  Api)eals.  While  county  judge  he  had 
continued  to  practice  in  tliose  courts.  Since  1895  lie  has  devoted  him- 
self exclusively  to  the  pi-actice  of  law,  having  offices  in  New  York 
City  as  well  as  Mount  V(>rnon. 

lie  is  a  member  of  the  New  York  State  15ar  Association,  the  Asso- 
ciation of  the  Bar  of  the  City  of  New  Y'ork,  the  Union  League  Club 
of  New  Y^ork  City,  the  New  Y'ork  New  England  Society,  Sons  of  the 
Kevolution,  Society  of  Medical  Jurisprudence,  Delta  Kappa  Epsilon 
Club,  New  York  Kepublican  Club,  and  the  masonic  fraternity.  lie  is 
a  well-known  speaker  njwn  public  occasions— especially  in  connection 
with  the  celebrations  held  under  the  auspices  of  the  Sons  of  the 
Revolution. 

ITCIIELL,  WILLIAM  (born  in  the  City  of  New  York, 
February  24,  1801  ;  died  while  on  a  visit  to  the  summer 
residence  of  his  son,  at  Morristown,  New  Jersey,  October  6, 
188G),  was  the  son  of  Reverend  Edward  Mitchell  and  Cornelia 
Anderson.'  He  stood  at  the  head  of  his  class  in  the  preparatory  school 
of  Joseph  Nelson,  and  was  graduated  from  Columbia  College  with  all 
the  honors  in  1820.  He  studied  law  with  William  Slosson,  and  was 
admitted  to  the  bar  as  an  attorney  in  1828,  as  solicitor  in  chancery  in 
1824,  as  counsellor  at  law  in  1826,  and  as  counsellor  in  chancery  in 
1827.  He  soon  won  recognition  as  a  learned  lawyer.  He  edited  an 
edition  of  Blackstone,  with  American  cases,  published  in  1841,  and  was 
recognized  as  an  expert  in  real  estate,  probate  and  commercial  law. 
Appointed  master  of  chancery  in  1840,  he  distinguished  himself  in 
difficult  cases  and  acquired  a  large  practice.  He  was  a  justice  of  the 
Supreme  Court  for  the  1st  judicial  district  of  New  Y'ork  from  1849  to 
1858,  serving  as  a  judge  of  the  Court  of  Appeals  in  IBoG,  and  becoming 
presiding  justice  of  the  Supreme  Court  of  his  district  in  1857. 

A  most  remarkable  tribute  to  his  judicial  abilities  and  fairness  is 
the  fact  that  from  his  retirement  from  the  bench  until  his  death,  by 
common  consent  of  the  legal  profession  of  New  Y'ork  City,  he  was 
practically  continued  in  the  discharge  of  important  judicial  duties, 
holding  court  almost  continuously  as  referee  for  the  adjudication  of 
cases  assigned  to  him  by  the  judges  or  referred  to  his  arbitration  by 
mutual  consent  of  the  parties  at  issue.  This  was  a  unique  distinction 
in  the  degree  that  he  enjoyed  it.  "  His  reported  opinions,"  says  the 
venerable  Benjamin  D.  Silliman,  "  are  marked  by  breadth  and  force  of 
reasoning  and  large  learning,  which  give  to  them  permanent  value." 

'  Ilis  father  was  born  in  Coleraine,  Ireland,  came  to  Mitchell's  mother  was  a  native  of  New  York  City,  of 

America  in  1791,  resided  for  a  time  in  Philadelphia,  and  Dutch  ancestry.   She  was  descended  from  Peter  Andres 

removed  to  New  York  City,  which  was  for  many  yen  sen,  who  received  a  grant  of  land  m  New  Amsterdam  in 

his   residence,    and  where   he   died  in    1834,     Judge  1C45. 


418  HISTORY   OF   THE   BEXCH   AND   BAR    OF   NEW   YORK 

[OAK,  NATHANIEL  C.  (born  in  Sharon,  Otsego  county,  New 
York,  October  3,  1833  ;  died  in  Albany,  September  17,  1892), 
was  one  of  the  most  accomplislied  case  lawyers  in  the  United 
States.  He  read  law  with  James  E.  Dewey,  of  Cherry  Yalley, 
and  was  admitted  to  the  bar  in  1856.  In  1867  he  went  to  Albany, 
where  he  practiced  till  his  death.  He  was  elected  in  1871  district- 
attorney  of  Albany  county.  As  a  practitioner  he  was  engaged  in 
many  celebrated  cases.  His  library  was  ijrobably  the  most  extensive 
collection  of  law  books  ever  brought  together  by  an  individual.  He 
was  noted  for  his  law  learning  and  his  kindness  of  nature.  He  was 
the  nestor  of  the  Albany  bar. 


jOMPESSON,  ROGER,  one  of  the  early  colonial  chief -justices 
(commissioned  July  15,  1704),  was  an  able  man,  who  in  Eng- 
land had  been  for  two  terms  a  member  of  parliament  and 
had  filled  the  office  of  recorder  of  Southampton  (England). 
He  was  of  an  old  English  family,  and  came  to  America  with  a  letter  of 
introduction  from  William  Penn,  asserting  him  to  be  "well  grounded 
in  the  law  and  an  honest,  good-tempered  and  sober  gentleman."  He 
was  a  man  of  learning  in  his  profession,  and  O'Callaghan  says  he  "  did 
more  than  any  other  man  to  mould  the  judicial  system  of  both  New 
York  and  New  Jersey."  He  was,  however,  a  partisan  of  Lord  Corn- 
bury's,  and  has  received  from  a  historical  writer  "  a  sentence  of  stern 
and  unqualiiied  condemnation  "  for  signing  the  address  to  the  queen 
justifying  the  whole  of  Cornbury's  conduct. 

He  served  as  chief-justice  from  1704  to  1715.  He  had  previously 
(1703)  been  commissioned  admiralty  judge  for  New  York,  New  Jersey, 
Connecticut,  Rhode  Island  and  Massachusetts  Bay. 


w^wfONELL,  CLAUDIUS  L.  (born  in  Columbia  county.  New  York, 
J^jJ^  in  1815  ;  died  in  Narragansett  Pier,  Rhode  Island,  Augiist  1, 
^^^  1876),  was  a  son  of  Joseph  D.  Monell,  a  prominent  lawyer  of 
'  *   Columbia  county.     He  studied  law  in  the  office  of  Judge 

Edmonds  and  began  practice  in  Hudson  as  a  member  of  the  firm  of 
Ilogeboom,  Sutherland  &  Monell.  About  1850  he  removed  to  New 
York  and  opened  a  law  office  in  association  with  his  old  partner,  Judge 
Josiah  Sutherland.  After  Judge  Sutherland's  election  to  congress  this 
association  was  dissolved.  Later  he  organized  the  firm  of  Monell,  Wil- 
lard  &  Anderson. 

In  November,  1861,  he  was  elected  judge  of  the  Superior  Court  of 
the  City  of  New  York  for  a  term  of  six  years,  and  he  was  re-elected  in 
1807  and  1873 — on  the  latter  occasion  for  a  period  of  fourteen  years. 
He  became  chief-justice  of  the  court  January  8,  1874,  succeeding  John 


IIISTOKV    OK    lllK    in:.N(II    AM)    1!AK    ("K    NKW    VoiIK  I  I  !> 

M.  liai-boiir.     .Iiidp'  Moiit'll  was  ;i  hkmiiIxt  of  (hr  <'()iis|itiiti(,ii;il  con- 
vention of  1S()7. 

During;  Ills  cai-ly  caicci- he  wrolc  a  ticatisr, '•  MoiicH's  I'ractici-," 
wliicli,  as  flic  lirst  work  on  the  snbjcft  after  the  adcfjition  of  the  code, 
was  very  favorahlv  I'cceived. 


fw^goRELL,  (tK()H(tE  (Iwrn  in  Lenox,  Massachusetts,  Marcli  22, 
y^yj/l^  17S();  died  in  Detroit,  Michigan,  March  8,  1845),  was  gradn- 
^w^  a  ted  from  Williams  College,  and  after  his  admission  to  the 
'^—-  *  bar  in  1811  engaged  in  i)ractice  in  Cooperstown,  New  York. 
In  I82T  he  became  the  lirst  county  judge  of  Otsego  county,  and  in  ^8'^2 
held  the  same  office  again.  He  was  a  member  of  the  assembly  in  1S29. 
His  subsequent  career  was  in  Michigan,  where  he  became  a  distin- 
guished jurist.  He  was  United  States  judge  of  that  territory  from  1S82 
to  1836  ;  justice  of  the  jNfichigan  Supreme  Court  froiu  1S8C  to  1843  and 
chief-justice  of  the  same  from  July  18,  1843,  until  his  death. 


lORELL,  GEORGE  WEBB  (born  in  Cooperstown,  New  York, 
.lanuary  8,  1815  ;  died  in  Scarborough,  New  York,  February 
12,  1883),  was  the  son  of  the  preceding,  and  his  wife,  a  daugh- 
ter of  General  Samuel  B.  Webb.  After  his  graduation 
from  AVest  Point  in  1835,  he  was  engaged  with  the  engineer  corps  in 
improvements  of  the  Lake  Erie  harbors,  the  Ohio  and  Michigan  bound- 
ary surveys,  and  the  construction  of  Fort  Adams,  at  New])ort,  Rhode 
Island.  Resigning  from  the  army,  he  engaged  in  railroad  construction 
in  the  Carolinas  and  Michigan,  but  in  1840  removed  to  New  York  City. 
Here  he  studied  law,  and  practiced.  From  1854  to  1861  he  was  United 
States  Circuit  Court  commissioner  for  the  southern  district  of  New 
York.  He  rose  to  the  rank  of  major-general  during  the  civil  war,  and 
afterward  retired  to  country  life  at  Tarrytown,  New  York. 


ORGAN,  CHRISTOPHER  (born  in  Aurora,  Cayuga  county, 
New  York,  June  4,  1808  ;  died  in  Auburn,  New  York,  April 
3,  1877),  was  graduated  from  Yale  College  in  1828.  After 
studying  law  with  William  H.  Seward  and  being  admitted  to 
the  bar,  he  became  Mr.  Seward's  partner,  and  he  attained  to  consider- 
able i)roniinence  in  public  life.  He  was  a  member  of  congress  for  two 
terms,  from  1839  to  1843,  and  from  1848  to  18.-)2  was  secretary  of  state 
of  New  York.  He  was  long  a  trustee  of  the  lunatic  asylum  at  Utica,  a 
state  institution.  For  a  time  he  was  a  merchant.  His  brother,  Edward 
Barber  ^lorgan,  was  the  well-known  ^philanthropist,  for  a  time  part 
owner  of  the  New  York  Tunes,  and  one  of  the  founders  of  the  Wells 
&  Fargo  and  the  United  States  express  companies. 


420 


HISTORY  OF  THE  BENCH  AND  BAE  OF  NEW  YORK 


ORGAX,  LE  ROY  (born  in  Onondaga  county,  New  York,  in 
1810  ;  died  in  Syracuse,  New  York,  May  15,  1880),  was  admit- 
ted to  the  bar  at  the  age  of  twenty-two.  In  1813  he  was 
appointed  to  the  office  of  district-attorney  of  Onondaga 
county,  which  he  held  for  three  years.  He  was  elected  in  1859  a  justice 
of  the  Supreme  Court,  and  at  the  end  of  eight  years  was  re-elected 
without  opposition.  He  became  chief-justice  of  the  court.  Upon 
completing  his  second  term  he  retired  and  resumed  the  practice  of  his 
profession.  He  was  a  man  of  learning  and  ability,  and  a  very  useful 
servant  on  the  bench. 


ORRIS,  GOUVERNEUR  (born  in  Morrisania,  New  York, 
January  31, 1752  ;  died  in  the  same  place,  November  6, 1816), 
was  the  son  of  Lewis  Morris,  2d,  and  half-brother  of  Lewis 
Morris,  3d,  signer  of  the  declaration  of  independence.  Al- 
though a  member  of  the  family  most  illustrious  for  legal  attainments 
(with  that  of  Smith  as  a  close  rival)  in  the  colonial  history  of  New 
York  and  New  Jersey,  and  himself  bred  a  lawyer,  the  fame  of  Gouver- 

neur  Morris  is  not  at  all  that  of  either 
lawyer  or  judge.  He  Avas  admitted  to 
the  New  York  bar  in  1771,  however, 
having  been  graduated  from  King's 
College,  now  Columbia,  in  1768. 
Doubtless  this  legal  training  was  of 
great  service  to  the  state  and  the  na- 
tion, for  although  Morris  was  a  legis- 
lator, statesman,  and  diplomat,  rather 
than  a  lawyer,  yet  in  some  of  these 
capacities  he  had  much  to  do  with 
moulding  our  constitutional  law.  He 
served  on  the  committee  which  drafted 
the  state  constitution  of  1776  ;  was  in 
1787  a  delegate  to  the  convention  that 
framed  the  constitution  of  the  United 
States,  and  had  assigned  to  him  the 
final  revision  of  that  instrument ;  was 
confidential  agent  to  negotiate  with  the 
British  government  respecting  the  terms  of  the  treaty  of  peace,  and 
as  a  member  of  the  United  States  senate  he  defended  the  judiciary  sys- 
tem provided  by  the  constitution  against  those  who  advocated  its  abo- 
lition. In  these  respects,  his  connection  with  matters  of  great  legal 
interest  was  one  of  unusual  import.  F'ull  accounts  of  his  services  as 
a  statesman  and  diplomat  are  easily  accessible. 


IIISTOKY    (IK   TIIK    HK.NCll    AM»    MAIJ    OK    NKW    VoltK 


IJ\ 


OKIUS,  LEWIS,  l8t  (born  in  New  York  City,  in  1071  ;  died 
in  Kin^sbnry,  New  .Jersey,  May  21,  174<)).  liic  ancestor  of  a 
laniily  of  lawyei-s  and  jurists,  was  tlie  son  of  Riciiard  Morris, 
;in  otlicer  in  Cromwell's  army.  His  parents  both  dyin^  when 
he  was  an  infant,  he  was  brought  up  by  an  uneU;  who  liad  large  landed 
interests  at  Morrisania,  Westchester  county,  now  a  ])art  of  New  York 
(Mty.  As  a  youth  Lewis  Morris  is  said  to  have  been  quite  wayward, 
ami  throughout  his  after  career 
he  was  erratic,  although  possess- 
ing remarkable  abilities.  He 
studied  law  and  engaged  in  suc- 
cessfid  practice,  being  one  of  the 
few  lawyers  of  his  day  in  New 
Y^ork  and  New  Jersey  who  had 
been  bred  to  their  profession. 
In  1(392  he  was  appointed  to  the 
bench  of  the  Superior  Court  of 
New  Jersey,  also  becoming  a 
member  of  the  council  of  Corn- 
bury,  the  corrupt  and  effeminate 
governor  of  New  Y'ork  and  New 
Jersey.  Morris,  with  William 
Smith  and  James  Alexander, 
was  of  that  extraordinary  trium- 
virate in  the  colony  of  New  Y^ork 
who,  with  voice  and  pen  and  in 
the  courts,  made  the  fight  for 
liberty  of  opinion,  and  of  the 
press,  and  of  free  criticism  of 
existing  government  and  exposure  of  any  follies  or  corruption  of 
which  it  might  be  guilty,  which  was  echoed  through  the  thirteen 
colonies,  sowing  the  harvest  reaped  in  the  successful  struggle  for  inde- 
pendence a  half-century  later.  (See  the  sketches  of  James  Alexander, 
Andrew  Hamilton,  and  especially  of  "William  Smith.)  It  was  not  in 
reason  that  a  man  like  Morris  should  prove  an  agreeable  councillor 
to  the  miserable  Cornbury ;  he  was,  in  fact,  a  thorn  in  the  latter's 
side,  and  was  presently  expelled  from  the  council.  Pugnacious  by  nat- 
ure, however,  Morris  had  himself  returned  to  the  New  Jersey  assembly, 
and  induced  that  body  to  draw  up  an  indictment  of  the  governor — for 
which,  unfortunately,  there  were  too  abundant  grounds.  This  docu- 
ment he  took  to  England,  and  personally  presented  to  Queen  Anne, 
notwithstanding  that  she  was  Cornbury's  cousin.  As  a  result  the  lat- 
ter was  recalled. 

Judge  Morris  was  subsequently  appointed  second  justice  of  the 
New  Jersey  Supreme  Court,  but  probably  never  took  his  seat,  as  he 
was  almost  immediately  (March  15,  1715)  made  chief-justice  of  New 


.rrr^ 


422 


HISTORY  OF  THE  BENCH  AND  BAR  OF  NEW  YORK 


York  and  Xe-.v  Jersey.     In  this  capacity  he  presided  in  the  famous 

case  of  Cosby  vs.  Van  Dam,  and  surprised  the  governor  by  delivering 

an  opinion  in  favor  of  the  contention  of  tlie  distinguished  counsel  for 

Van  Dam,  Alexander  and  Smith,  that  the  court, 

as  constituted,  being  the  creation  of  the  king  and 


OOO 


OOO 


not  authorized  by  the  legislature,  was  without 
jurisdiction  or  power  in  the  case.  Alexander  and 
Smith  were  later  disbarred  for  maintaining  this 
contention,  and  Judge  Morris  was  removed  from 
office.  He  was  chiefly  instrumental  in  bringing 
about  the  entire  separation  of  the  governments 
„„„„.,  ^,wu,  o^  New  York  and  New  Jersey.     He  had  been 

councillor  of  the  colony  of  New  Jersey  from  1710 

to  1738,  and  became  its  acting- governor  in  1731  and  its  governor  from 

1738  until  his  death  in  1746. 


■n/- 


ORRIS,  LEWIS,  2d  (born  in  1698  ;  died  in  1762),  was  the  son 
of  the  preceding.  He  was  carefully  educated,  bred  to  the 
law,  and  subsequently  became  chief  justice  of  the  Vice- 
Admiralty  Court.  He  was  father  of  Lewis  Morris,  3d,  signer 
of  the  declaration  of  independence,  and  of  the  famous  Gouverneur 
Morris,  noticed  above  ;  these  two  sons  being  by  different  Avives. 


|ULLETT,  JAMES  (born  in  Whittingham,  Vermont,  October 
17,  1784  ;  died  September  10,  1858),  son  of  a  tailor,  and  him- 
self apprenticed  to  a  millwright  at  Darien,  New  York, 
whither  his  father  removed  about  1800,  subsequently  studied 
law  by  himself  while  performing  the  duties  of  clerk  for  a  business  firm 
at  Fredonia,  New  York.  Admitted  to  the  bar  in  1814,  he  was  a  member 
of  the  assembly  in  1823  and  again  the  following  year.  In  1841  lie  lo- 
cated in  Buffalo.  He  was  appointed  attorney  of  Buffalo  in  184(5,  and 
in  1847  was  elected  a  justice  of  the  Supreme  Court  for  the  7th  judicial 
district. 


UNRO,  PETER  JAY  (born  in  Rye,  New  York,  January  10, 17G7; 
died  in  Mamaroneck,  ]New  York,  September  23, 1833),  was  the 
son  of  Reverend  Henry  Miinro  and  Eve,  only  daughter  of 
Peter  Jay.  His  father  was  born  in  Scotland  and  was  com- 
pelled to  flee  to  England  during  the  Revolution  on  account  of  his  Biit- 
ish  sympathies.  At  the  age  of  thirteen  Peter  Jay  Munro  accomi)aiiied 
his  distinguished  uncle,  John  Jay,  to  Madrid,  upon  the  appointment  of 
the  latter  as  United  States  minister  to  Spain  in  1779.  His  previous 
education  had  also  been  under  the  direction  of  John  Jay.  During  a 
residence  of  three  years  in  Madrid  and  two  in  Paris  he  became  i^roli- 


IIISIOIIV    OK     IIIK    Iii;N(  II     AM)    MAU    OK    NKW    Voi;K  4-i:{ 

dent  in  the  SpMiiisli  ;iii(l  I'^ri-ncli  laii^niii^cs.  IJiiimiiii;,^  lo  New  Yoi'k 
City  in  1784  he  stiidirtl  l;i\\  with  Anron  Hiiir,  :iiiil  iil'itT  liis  iidniission 
he  soon  acquired  a  lar^c  practice,  and  witli  conii)aralivi'  lajiidity  won 
recofj^nition  as  one  of  tlie  leaders  of  the  New  York  bar. 

He  was  a  member  of  tlie  constitntional  convention  of  1S21,  and  l)y 
ai>i)()intment  of  Governor  'i'onipkins  was  chairman  of  its  jndiciary  com- 
mittee. lleceivin<;  a  severe  stroke  of  paialysis  in  1820  wliile  in  the 
discliar^e  of  ])rofessional  dnties,  lie  i-etired  to  liis  country  estate  in 
\Vestchester  county,  where  lie  lived  until  his  death. 


IRPIIY,  HENRY  CRUSE  (born  in  Brooklyn,  New  York, 
.Inly  5,  1810;  died  there,  December  1,  1882),  was  one  of  the 
most  notable  tignires  in  the  history  of  the  Brooklyn  bar,  dis- 
tinguishin<^  himself  as  a  lawyer,  as  a  historian  and  in  public 
life.  He  was  graduated  from  Columbia  College  in  1830,  studied  law, 
and  began  writing  for  the  newsi)apers.  He  was  admitted  to  practice 
in  18:53.  In  183-4  he  was  appointed  assistant-corporation  counsel  of 
Brooklyn,  and  subsequently  he  became  attorney  of  the  city  and  also 
corporation  counsel.  In  partnership  with  John  A.  Lott  from  1835  he 
enjoyed  a  large  and  important  practice.  He  soon  took  an  active  i)art 
in  democratic  politics,  and  frequently  contributed  articles  on  current 
topics  to  the  leading  periodicals.  Becoming  an  editor  and  part  pro- 
prietor of  the  Brooklyn  Eagle  in  1841,  his  policy  in  connection  with 
this  journal  attracted  attention,  leading  to  his  nomination  and  election 
as  mayor  of  the  city  the  following  year.  His  administration  was  char- 
acterized by  economy  in  . 
expenditnre,  but  coupled  /x/,  /^ 
with  public  improve-  /^/^''CyUOtY  ^ 
ments,  such  as  the  exten- 
sion of  the  wharf  system.  He  was  at  once  elected  to  congress,  s(*r\  ing 
from  1843  to  1847,  two  terms.  He  was  United  States  minister  to  Hol- 
land from  1857  to  1861.  During  these  years  he  made  a  study  of  the 
Dutch  period  of  the  Colony  of  New  Y'ork,  availing  himself  of  the  docu- 
mentarj^  resources  which  his  sojourn  at  the  Hague  placed  at  his  dis- 
posal. Returning  to  this  country  he  was  elected  to  the  state  senate, 
where  he  served  through  six  terms.  He  earnestly  supported  the  gov- 
ernment during  the  civil  war.  He  was  a  prominent  member  of  the 
constitntional  convention  of  1867,  having  also  been  chairman  of  the 
committee  on  corporations  in  the  constitntional  convention  of  1846. 

Mr.  Murphy  was  one  of  the  founders  of  the  city  library  of  Brook- 
lyn and  of  the  Long  Island  Historical  Society.  His  important  historical 
works  include  De  Tries'  "  Voyage  from  Holland  to  America,  a.  d.  1032- 
1644,''  annotated  (1853) ;  a  "  Catalogue  of  an  American  Library,  Chron- 
ologically Arranged  "  (an  account  of  his  own  collections,  1853) ;  "  Broad 
Advice  to  the  New  Netherlands "  (coll.  N.  X.  Historical  Soc.) ;  "  The 


424       HISTORY  OF  THE  BENCH  AKD  BAR  OF  NEW  YORK 

First  Minister  of  the  Butch  Reformed  Church  in  the  United  States" 
(The  Hague,  1857) ;  "  Henry  Hudson  in  Holland  :  An  Enquiry  into  the 
Origin  and  Objects  of  the  Voyage  which  Led  to  the  Discovery  of  the 
Hudson  River"  (The  Hague,  18o9);  "  Anthrology  of  the  New  Nether- 
lands, or  Translations  from  the  Early  Dutch  Poets  of  New  York,  with 
Memoirs  of  their  Lives"  (1865,  printed  for  the  Bradford  Club) ;  "The 
Voyage  of  Verrazano "  (Albany,  1805) ;  "  Memoir  of  Hermann  Ernst 
Ludewig,"  and  a  translation  of  the  "  Voyage  to  New  York,"  by  Jasper 
Dankers  and  Peter  Sluyter  (Brooklyn,  1867). 


URRAY,  JOSEPH,  was  one  of  the  most  eminent  of  the  co- 
lonial lawyers,  being  at  the  time  of  his  death  (1757)  the  rec- 
ognized head  of  the  bar.  He  was  a  native  of  L'eland,  came 
to  New  York  in  early  life,  and  studied  law  here.  He  married 
a  daughter  of  Governor  Cosby  and  was  called  to  the  council.  He 
amassed  a  large  fortune  by  his  practice  and  collected  a  valuable  librarj^, 
which  he  bequeathed  to  King's  (now  Columbia)  College.  The  books 
were  stolen  and  scattered  in  the  fall  of  1776  by  Lord  Howe's  soldiers. 
Judge  Jones  declares  that  they  were  "  publicly  hawked  about  the  town 
for  sale  by  private  soldiers,  their  trulls  and  doxeys."  He  affirms  that 
he  himself  "saw  an  Annual  Register  neatly  bound  &  lettered,  sold 
for  a  dram.  Freeman's  Reports  for  a  shilling ;  and  Coke's  Jst.  Institute, 
or  what  is  usually  called  Coke  upon  Littleton,  was  offered  to  me  for 
Is.  6d.  I  saw  in  a  public  house  on  Long  Island  nearly  40  books  bound 
and  lettered,  in  which  were  affixed  the  arms  of  Joseph  Murray,  Esq., 
under  pawn  for  from  one  dram  to  three  drams  each." 

He  was  for  many  years  attorney-general.  As  a  practitioner  he  had 
much  legal  experience  and  displayed  ability  in  the  argument  of  law 
questions,  but  was  not  specially  remarkable  otherwise. 


URRAY,  WASHINGTON  (born  in  New  York  City  in  1828  ; 
died  September  19,  1867),  was  the  son  of  Colonel  James  B. 
Murray  and  Maria  Bronson,  both  representatives  of  old  New 
York  City  families.  His  father  entered  the  war  of  1812  as 
2d  lieutenant  of  artillery;  was  promoted  before  its  close  to  lieutenant- 
colonel  ;  and  in  1817  was  commissioned  colonel  of  the  4tli  regiment 
of  New  York  State  artillery.  His  mother  was  a  daughter  of  Doctor 
Isaac  Bronson,  of  New  York  City,  who  served  as  a  surgeon  in  the 
revolutionary  army ;  was  one  of  the  founders  of  the  New  York  Life 
Insurance  and  Trust  Company  ;  and  carried  his  bank  at  Bridgeport, 
Connecticut,  through  the  war  of  1812  without  suspending  specie 
payments. 

Mr.  Murray  was  graduated  from  Yale  in  1849  and  from  Harvard 
Law  School  in  1851.     He  was  admitted  immediately  afterward  to  the 


iiisi(»i;y   ok   riiK  iii;.N(II   am>  iiai:  ok  m;w   vokk  425 

bar  in  New  York  VAiy,  wIkm-c  lie  :il  once  coimiKMicrd  jtinclicc,  hecom- 
uvj;  a  iiKMnbcrof  the  linn  of  Mott  tS:  Mnrray  in  Is:),',,  of  Molt,  Mnrmy  tV 
Harris  in  ls:)S.  an<l  of  Mnmiy  tS:  Mill<'r  in  IS(i:).  II. >  rollowcd  :i  v.-iiird 
practice,  in  wliicli  lie  was  eminently  sncccssful.  lie  was  |)o|iiil:ir 
ainoni::  the  members  of  the  bar,  and  his  hi<fli  jjrofessional  and  privates 
character  was  nniversally  recognized.  In  IS^C  he  niari'ied  Miss  Eliza 
R.  W.  Dana,  one  of  the  belles  of  Boston,  who  survives  liim. 

lie  was  for  several  years  a  trnstee  of  pnblic  schools  in  the  Isth 
waril,  and  was  a  member  of  the  I'nion  Club,  lie  was  (mly  at  the 
threshold  of  his  career  when  his  early  death  at  the  age  of  thirty-nine 
years  ended  a  i)rofessional  life  of  great  promise. 


|ASII,  STEPHEN  PAYNE  (born  in  Albany,  New  York,  An- 
tiiist  2G,  1821),  is  the  son  of  David  Nash  and  Hannah  Payne. 
His  father,  a  descendant  of  Thomas  Nash,  one  of  the  orig- 
inal settlers  in  New  Haven,  Connecticnt,  in  1G38-40,  and  of 
Reverend  Samuel  Stone,  pastor  of  the  church  at  Hartford  (1636),  died 
at  the  early  age  of  forty.  His  widow,  with  her  young  children,  moved 
to  Saratoga  Springs.  Mr.  Nash  attended  the  Albany  Academy,  of 
which  Doctor  T.  Romeyn  Beck  was  president,  and  after  the  removal 
to  Saratoga  spent  some  time  in  the  French  college  at  Chanibly,  Lower 
Canada,  subsequently  entering  the  law  office  of  Esek  Cowen,  one  of 
the  justices  of  the  Supreme  Court  living  at  Saratoga.  Chancellor  Wal- 
worth and  Judge  Willard,  then  circuit  judge  of  the  Supreme  Court, 
also  resided  in  the  same  village.  There  Mr.  Nash  completed  his  j)re- 
paratory  professional  studies  and  was  admitted  to  practice  in  the  Su- 
preme Court  in  January,  1843,  receiving  at  once  from  Chancellor  Wal- 
worth, without  further  examination,  his  license  as  solicitor  and  counsel 
in  chancery.  During  his  clerkship  he  had  assisted  Judge  Cowen  and 
Mr.  Nicholas  Hill  in  their  labors  on  the  voluminous  "  Cowen  &  Hill's 
Notes  to  Phillips'  Evidence."  Mr.  Hill  was  appointed  state  reporter 
in  1842  and  removed  to  Albany. 

Upon  his  admission  to  the  bar  Mr.  Nash  formed  a  partnership  with 
Augustus  Bockes,  afterward  a  judge  of  the  Supreme  Court  for  the 
4:th  judicial  district,  but  soon  removed  to  Albany  to  become  junior 
partner  to  Mr.  Hill,  whom  he  assisted  in  the  later  volumes  of  his 
valuable  reports.  In  184."i  he  removed  to  New  York  City,  becoming  a 
member  of  the  firm  of  Walker  &  Nash.  Shortly  afterward  he  fonned 
with  Gilbert  M.  Speir,  afterward  a  judge  of  the  New  York  Superior 
Court,  the  firm  of  Speir  &  Nash,  and  some  seventeen  years  later,  with 
Edward  H.  Owen  and  Joseph  H.  Gray,  the  firm  of  Owen,  Nash  &  Gray. 
On  the  dissolution  of  that  partnership  he  formed  with  his  son,  John 
:McL.  Nash,  and  George  C.  Holt  the  firm  of  Nash  &  Holt,  with  J.  P. 
Kingsford  the  firm  of  Nash  &  Kingsford,  and  finally  with  his  son  and 
Mr.  Charles  L.  Jones  the  present  firm  of  S.  P.  cS:  J.  McL.  Nash. 


426  HISTORY   OF   THE   BENCH   AND   BAR  OF   NEW   YORK 

Mr.  Nash's  admission  to  the  chancery  bar,  prior  to  the  abolition  of 
that  court  by  the  constitution  of  1846,  may  to  some  extent  explain 
the  bent  of  his  studies.  While  he  has  had  a  varied  experience  in  all 
branches  of  civil  jurisprudence,  he  has  distinguished  himself  in  a  special 
way  in  the  line  of  cases  which  involve  equity  law  and  the  remedies  by 
which  equitable  as  distinguished  from  purely  legal  rights  are  enforced. 
The  range  of  his  professional  work  is  illustrated  by  such  cases  as 
Spear  vs.  Wardell,  in  the  first  volume  of  the  New  York  Court  of  Ap- 
peals Reports  ;  Dupuy  vs.  AVurtz  (53  N.  Y.),  Fowler  vs.  New  York  Gold 
Exchange  Bank  (67  N.  Y.),  and  many  others  in  the  series  down  to  Hol- 
ley  vs.  Hirsch  (135  N.  Y.),  and  Smith  vs.  Parsons  (146  N.  Y.).  In  the 
United  States  Courts,  among  other  interesting  cases  was  that  of  Cau- 
jolle  vs.  Ferrie  (13  Wallace),  Clark  vs.  Iselin  (21  Wallace),  Macon  vs. 
Lamar  (114  U.  S.),  and  Liverpool  &  Great  Western  Company  vs. 
Phenix  Insurance  Company  (115  U.  S.). 

Being  a  member  of  the  Episcopal  Church,  Mr.  Nash  early  became 
connected  with  the  various  organizations  of  that  communion  in  the 
diocese  of  New  York.  He  has  been  for  many  years  a  member  of  the 
standing  committee  of  the  diocese  of  New  York,  became  a  vestryman 
of  Trinity  Church  in  1868,  and  is  a  trustee  of  the  General  Theological 
Seminary  of  the  Episcopal  Church.  He  has  represented  the  diocese 
of  New  York  in  the  triennial  general  conventions  of  the  church  since 
1880.  During  this  long  experience  he  has  become  familiar  with  the 
laws  affecting  religious  corporations,  and  has  been  much  consulted  in 
matters  of  ecclesiastical  law.  In  1885  he  was  retained  to  go  to  England 
as  an  expert  witness  in  the  Lauderdale  Peerage  case,  and  testified  before 
the  committee  for  privileges  of  the  House  of  Lords  as  to  the  law  of 
marriage  in  the  Colony  and  State  of  New  York  (10  App.  Cas.  692,  728.) 

He  was  elected  a  trustee  of  Columbia  College  in  1868,  and  has  taken 
a  very  active  interest  in  the  work  of  the  Law  School  of  that  institution, 
which  has  constantly  increased  in  importance,  and  is  now  provided 
with  a  fully  developed  faculty  of  six  professors.  He  received  the 
degree  of  doctor  of  laws  from  Columbia  College  in  1888  and  the  same 
degree  from  Trinity  College,  Hartford,  in  1891.  He  w^as  one  of  the 
founders  of  the  Association  of  the  Bar  in  the  City  of  New  York  in 
1869  and  1870,  assisted  in  the  preparation  of  its  first  constitution,  and 
personally  drafted  the  address  by  which  the  organization  was  recom- 
mended to  the  profession  at  large.  In  1880  he  was  elected  president  of 
the  association,  succeeding  William  M.  Evarts,  its  first  presiding  officer. 


lEILSON,  JOSEPH  (born  in  Argyle,  New  York,  in  1813  ;  died 
in  Brooklyn,  New  York,  January  26,  1888),  was  of  Scotch- 
Irish  ancestry.     He  first  practiced  law  in  Oswego,  continuing 
there  until  1844,  when  he  went  to  New  York  City.     In  1848 
he  removed  to  Brooklyn,  and  the  year  following  was  elected  one  of  the 


I 


lllsroUV    OK    TIIK    It  KM  II     AM)    i!\U    oK    N  K\V    V<ti;K  -127 

jn(l«i;«'s  of  (h«^  City  Court  on  the  democrat ic  ticket.  He  was  re-elected 
in  IS77,  and  served  as  presi(lin<i:  jud<!;e  until  his  retirement  in  188:}, 
liavin<;  reached  the  age  limit  of  seventy  years.  He  jjresided  over 
many  inqmrtant  trials,  notably  the  lleman-Earle  breach  of  promise 
suit  and  the  Tilton-Beecher  case. 


ET.SOX,  HOMER  A.  (born  in  Poughkeepsie,  New  York, 
August  :}],  IS'ii)  ;  died  there,  April  2;"),  1801),  entered  upon 
the  study  of  the  law  with  Tallman  &  Dean,  in  his  native 
^=^^^'  town,  at  the  age  of  sixteen.  He  was  admitted  to  the  bar  at 
majority,  but  had  previoiKsly  been  engaged  in  trial  cases  before  justices 
of  the  peace,  and  had  won  a  county  reputation.  In  1855,  at  the  age  of 
twenty-six,  he  was  elected  county  judge.  He  held  the  office,  being  re- 
elected, until  18G3,  when  he  resigned  to  take  a  seat  in  congress.  About 
this  time  he  also  resigned  the  colonelcy  of  the  107th  regiment  of  New 
York  state  volunteers,  which  had  been  raised  by  his  endeavors  in  1862. 
In  congress,  although  an  earnest  democrat,  he  gave  hearty  support  to 
the  administration  measures  which  culminated  in  the  enumcipation 
]iroc]amation.  Offered  by  President  Lincoln  the  appointment  of 
minister  to  Russia,  he  declined  it  lest  some  suspicion  might  attach  to 
his  motives.  He  was  a  delegate  to  the  constitutional  convention  of  1867, 
and  the  next  year  was  elected  secretary  of  state.  In  this  office  he  was 
ex  officio  a  member  of  the  canal  and  other  state  boards,  and  although 
confronted  by  the  powerful  and  corrupt  Tweed  regime  he  retired  with 
perfectly  clean  hands  and  free  from  political  entanglements.  In  1881 
he  was  sent  to  the  state  senate  from  a  district  which  had  never  before 
given  a  democratic  majority.  He  was  chairman  of  the  senate  judiciary 
committee,  which  had  in  charge  the  revision  of  the  criminal  code.  He 
was  a  prominent  candidate  in  1882  for  the  democratic  nomination  for 
governor,  and  on  the  first  ballot  received  nearlj'  as  many  votes  as  Mr. 
Cleveland.  In  1890  he  served  on  the  commission  appointed  to  revise 
the  judiciary  article  of  the  state  constitution. 

Judge  Nelson,  although  prominent  in  politics  for  many  years, 
never  neglected  his  professional  practice,  and  he  constantly  a]:)peared 
as  counsel  at  circuit  and  general  term,  both  in  the  2d  department, 
where  he  resided,  and  in  New  York  City,  where  he  had  offices  since 
1872.  He  frequently  argued  suits  before  the  Court  of  Appeals,  and 
almost  every  volume  of  the  state  reports,  for  a  period  of  nearly  twenty 
years,  contains  cases  in  which  he  was  counsel.  Some  of  the  representa- 
tive ones  are  Wood  vs.  Fisk  (63  N.  Y.,  245),  Johnson  vs.  Lawrence 
(95  N.  Y.,  154),  Thorn  vs.  Garner  (113  N.  Y.,  198),  and  the  Yassar 
will  case.  The  first  three  were  appeals  taken  by  Judge  Nelson,  and 
established  new  principles  in  law  and  equity  not  only  in  New  York 
but  in  other  states. 


428  HISTORY   OF  THE  BENCH   AND  BAR   OF  NEW   YORK 

ELSON,  SAMUEL  (born  in  Hebron,  Washington  county, 
New  York,  November  10,  1792;  died  in  Cooperstown,  New 
York,  December  13,  1873),  was  of  Scotch-Irish  descent,  the 
founder  of  his  family  having  located  in  Salem,  New  York,  as 
early  as  1760.  Judge  Nelson  attended  the  common  schools,  was 
graduated  from  Middlebury  College  in  1S13,  pursued  his  legal  studies 
with  Chief-Justice  Savage  of  Salem,  and  after  his  admission  to  the  bar 
in  1814,  at  Madison,  New  Y'ork,  rapidly  won  local  distinction  for  his 
torilliant  professional  work  as  a  young  lawyer.  He  also  became 
somewhat  active  in  politics.  In  1820  he  was  a  presidential  elector,  and 
he  was  a  member  of  the  constitutional  convention  of  1821.  In  the 
latter  body  he  resolutely  opposed  the  system  of  property'  qualification 
for  the  franchise. 

Between  1823  and  1831  he  served  as  circuit  judge.  In  1831  he  be- 
came a  justice  of  the  state  Supreme  Court,  and  in  1S37  was  made  its 
chief -justice,  a  position  which  he  held  for  eight  years.  He  was  a  mem- 
ber of  the  constitutional  convention  of  1846.  In  1845,  by  appointment 
of  President  Tyler,  he  succeeded  Smith  Thompson  as  an  associate- 
justice  of  the  United  States  Supreme  Court,  and  he  remained  a  member 
of  this  highest  tribunal  until  October,  1872,  when  illness  caused  by 
exposure  while  acting  on  the  special  commission  appointed  to  arbitrate 
the  Alabama  claims  forced  him  to  resign. 

Judge  Nelson  was  characterized  by  the  possession,  in  a  marked 
degree,  of  the  conservative  judicial  temperament  Avhich  is  supposed  to 
be  especially  suited  to  the  requirements  of  the  bench.  He  was  very 
deliberate  in  reaching  conclusions,  and  as  considerate  as  possible  of 
those  whose  contentions  he  felt  compelled  to  disallow.  He  disliked  to 
disappoint  any  ;  yet  it  could  scarcely  be  said  that  he  permitted  the 
sentimental  disposition  to  intrude  unduly  into  his  decisions.  His 
temperament  rather  led  him  to  find  that  mean  between  the  extremes  of 
partisan  claims  where  the  truth  in  a  majority  of  cases  is  found  to  lie. 
Thus  his  opinions  always  carried  weight,  and  commanded  the  attention 
and  respect  of  lawyers  and  jurists  generally. 

The  most  notable  of  the  historic  suits  which  came  before  him  was, 
of  course,  the  famous  Dred  Scott  slavery  test  case.  In  tliis  instance  he 
concurred  with  the  decision  renderecl  by  Chief-Justice  Taney  ujjholding 
the  constitutionality  of  the  fugitive  slave  law.  Justice  Nelson  ad- 
vanced the  opinion  that  if  congress  enjoyed  power  under  the  constitu- 
tion to  restrict  or  abolish  slavery,  it  must  certainly  possess  equal  power 
to  protect  and  maintain  the  same  institution.  Although  his  loyalty  to 
the  federal  government  was  unquestionable,  he  deei)ly  deplored  the 
civil  war,  and  at  the  outset,  at  least,  would  undoubtedly  have  thought 
peaceful  separation  the  wiser  course.  He  lamented  the  intrusion  of 
military  sway  in  usurpation  of  the  prerogatives  of  civil  government. 

As  a  member  of  the  joint  high  commission  of  arbitrators  to  adjust 
the  claiihs  of  England  growing  out  of  the  affair  of  the  Alabama,  to 


IllSl'dUV    OI-    'IIIK    lil.NCII     AM>    ItAi;    OI'    Ni:u-     M.KK  IJlt 

wliicli  lie  was  ai)i)()iii(<'(l  hy  Prt'sidcnt  (Jraiit,  lie  pcrfoniu'd  cxccllfiit 
st'ivice  for  his  {H)iiiitiy.  Tlic  cJSiisidiMatioii,  candor  and  jiidiciiil  spiiif 
cxhihitcd  by  tlu^  American  comniissioncrs  undonhtHdly  contrilMilcd 
largely  toward  arrivin<;  at  a  fail- conclusion  which  IIk^  foreign  commis- 
sioners could  a(U'e])t  without  imputation  ujjon  the  dignity  of  (ircat 
l^ritain.  .Instice  Nelson  became  a  martyr  to  his  seivice  upon  this 
commission.  His  death  followed  his  resignation  from  the  Supreme 
Court  in  a  little  more  than  a  vear. 


TCOLLS  (or  NICOLL),  MATTHIAS  (bora  in  Tslippe,  Northamp- 
tonshire, England,  about  1630;  died  on  Long  Island,  Decem- 
ber 22,  1(587),  was  the  son  of  Reverend  Mathias  Nicolls,  of 
Plymouth,  England,  ami  was  carefully  educated  for  the  law. 
He  accompanied  his  kinsman.  Colonel  liichard  JS'icolls,  u^wn  his 
expedition  of  conquest  against  the  Dutch  at  New  Amsterdam,  having 
previously  been  a  barrister  of  Lincoln's  Inn,  Loudon.  He  was  seci-etary 
of  the  commission  authorized  to  treat  with  the  Dutch,  was  a  captain  in 
the  military  under  Colonel  Nicolls,  and  carried  with  him  a  commission 
as  secretary  of  the  Province  of  New  York,  to  be  used  in  the  event  of 
the  success  of  the  expedition.  He  thus  became  the  first  royal  secretary 
of  New  York  under  the  English.  He  was  also  a  member  of  Governor 
Nicolls'  council. 

Undoubtedly  Judge  Nicolls  laid  the  foundations  of  our  jurispru- 
dence, as  reformed  under  the  accession  of  the  English.  He  was  a 
member  of  the  convention  at  Hempstead,  Long  Island,  which  promul- 
gated the  famous  code  known  as  "•  The 

Duke's  Laws,"  and  his  signature  as  £/^l^/fiaf  /l,rjr^ 
secretary  authenticated  this  body  of  ^ot^^vt/ 

law.  But  while  the  Hempstead  convention  was,  nominally,  a  delibera- 
tive body,  called  to  ponder  and  decide  weighty  matters,  as  representa- 
tives of  a  free  people,  it  is  well  known  that  what  was  really  expected 
was  the  solemn  approval  and  loyal  support  of  whatever  cut-and-dried 
programme  should  be  furnished  to  the  assembly.  This  task  the  con- 
vention performed  with  every  regard  for  propriety  and  proper  forms. 
Indeed,  it  was  well  that  it  was  so  ;  for  Judge  Nicolls,  substantially  the 
author  of  the  code  adopted,  was  well  qualified  for  the  part,  and  had 
prepared  measures  which  were  ample  for  the  social  conditions  they 
had  in  view%  and  for  the  times  most  liberal.  The  laws  of  England,  the 
body  of  Dutch  law,  based  in  turn  upon  Roman  law,  and  many  admira- 
ble provisions  embraced  in  the  various  charters  of  the  New  England 
colonies,  had  all  been  utilized  for  Avhatever  valuable  suggestions  they 
appeared  to  offer. 

In  various  courts  Matthias  Nicolls  participated  in  the  judicial 
administration  and  interpretation  of  the  laws  he  had  formulated.  He 
was  presiding- justice  of  the  Court  of  Assizes  erected  under  this  code, 


430       HISTORY  OF  THE  BENCH  AND  BAR  OF  NEW  YORK 

sat  also  in  the  inferior  Courts  of  Session,  and  was  the  first  judge  of  the 
Court  of  Common  Pleas  of  New  York^City.  Under  the  legislative  act 
of  1863,  reconstructing  the  courts,  he  was  appointed  a  justice  of  the 
Supreme  Court.  He  was  elected  mayor  of  New  York  in  1672,  being 
the  third  to  hold  that  office.  He  is  sometimes  referred  to  in  old  docu- 
ments as  "  Captain  Nicolls,"  since  he  retained  his  military  command, 
as  also  the  office  of  secretary  of  the  province,  while  holding  judicial 
positions.  He  had  a  large  estate  called  "  Plandome,"  of  some  2,000 
acres,  at  Little  Neck  and  Great  Neck,  Long  Island. 


ICOLLS  (or  NICOLL),  WILLLVM  (born  in  England,  in  1657  ; 
died  at  Islip,  Long  Island,  in  May,  1723),  was  the  only  son 
of  the  preceding.  He  was  undoubtedly  trained  in  the  law  by 
his  father,  and  began  his  official  career  as  clerk  of  Queens 
county,  New  York,  in  1683.  Later,  in  1688,  he  removed  to  New  York 
City,  where  he  engaged  in  the  practice  of  law,  and  soon  came  into 
prominence.  His  sympathies  were  entirely  with  the  aristocratic  party, 
and  in  the  most  vigorous  luanner  he  contended  against  Jacob  Leisler 
and  his  supporters.  Such  was  his  opposition  to  the  assumption  of  the 
government  by  Leisler  in  1688,  that  the  latter  had  him  imprisoned. 
Nicolls  had  his  revenge  upon  the  arrival  of  Governor  Sloughter  in 
1691,  however,  and  being  released  from  duress  soon  saw  the  tables 
turned,  with  Leisler  on  trial  for  his  life,  and  himself  and  two  other 
lawyers,  James  Emott  and  George  Farwell,  or  Farrawell,  engaged  in 
the  prosecution.  Unfortunately  their  efforts  were  only  too  successful. 
Leisler  was  convicted,  his  judges  being  his  most  bitter  partisan  enemies  ; 
the  official  signature  to  the  death-warrant  was  obtained  by  getting  the 
governor  drunk,  and  the  liberty-loving  Leisler  paid  the  penalty  of  his 
excesses  in  the  cause  he  had  championed. 

Appointed  a  member  of  the  council  by  Governor  Sloughter  in 
1691,  Nicolls  held  his  position  until  removed  by  Governor  Bellomont 
in  1698,  upon  evidence  of  complicity  in  illicit  trade  transactions— an 
offence  not  reprobated  as  it  should  have  been  in  those  days  of  tolera- 
tion of  piracy  and  smuggling.  In  1695  he  was  the  agent  of  the  New 
York  assembly  to  plead  before  the  king  that  a  proper  share  of  the 
burden  of  providing  for  the  defence  of  the  frontiers  against  the  French 
be  bo]-ne  by  the  other  American  colonies. 

Among  his  striking  cases  as  a  lawyer,  in  addition  to  that  of  Leisler, 
were  his  defences  of  Nicholas  Bayard,  in  1702,  and  of  Francis  Makemie 
in  1707.  Bayard,  the  gifted  but  unscrupulous  leader  of  the  aristocratic 
party,  upon  receiving  news  of  the  appointment  of  Governor  Cornbury, 
issued  a  document  attacking  the  government  as  conducted  under  Bel- 
lomont and  Nanfan.  On  this  account  he  was  indicted  for  high  ti'eason 
— under  a  law  of  his  own  procurement  enacted  for  convenient  pui-poses 
after  the  execution  of  Leisler,  which  provided  that  "  whatsoever  person 


iiisr(ti:v  OK   iiiK  hi:n(  II   and  km:  oi'  m;\v  V()i:k  VM 

or  persons  shall  by  any  manner  of  way  or  ui)on  any  pretense  whatever 
endeavor  ....  to  disturb  tiie  peace,  ^ood  and  (piiet  of  (heir  Majesties' 
government  as  now  established  shall  be  <>steenied  as  rebels  and  traitors 
unto  their  Majesties  and  incur  tlic^  pains,  i)enalties  and* forfeitures  as 
the  laws  of  England  have  for  such  ofTences  nuide  and  i)rovided.'' 
liayard  was  prosecuted  by  Councillor  Thomas  Weaver,  attorney-general 
Hroughton  having  refused  to  appear  against  him  ;  and  not  even  th<' 
able  defence  of  his  brilliant  counsel,  William  NicoUsand  James  Emott, 
was  sufiicient  to  save  him  from  conviction  under  this  statute  of  his  own 
creation,  now  that  the  Leislerians  had  become  the  partisan  judges  and 
himself  the  victim.  Fortunately  they  did  not  imitate  his  own  methods 
against  Leisler  and  ^filborne  to  the  bitter  end,  birt  granted  him  a  re- 
prieve after  frightening  him  into  making  an  incriminating  confession. 

Much  more  to  Mr.  Nicolls'  credit  was  his  able  defence  of  Reverend 
Fraiu'is  Makemie,  a  presbyterian  clergyman  of  Virginia,  whom  Coi-n- 
bury  imprisoned  for  the  crime  of  preaching  in  New  York  City  without 
the  precaution  of  soliciting  the  governor's  permission,  and  notwith- 
standing that  the  divine  had  a  license  from  the  queen  to  preach  any- 
where in  her  dominions.    Nicolls  triumphantly  acquitted  him. 

Elected  to  the  New  York  assembly  from  Suffolk  county  in  1701, 
Nicolls  was  refused  his  seat  because  of  non-residence  in  the  county, 
lie  was  re-elected  the  following  year,  however,  and  became  speaker  of 
the  house.  He  was  thereafter  a  member  of  that  body  for  twenty-one 
years  in  succession,  and  speaker  for  sixteen  years.  It  cannot  justly  be 
said  that  the  career  of  this  talented  lawyer  was  beyond  reproach.  Of 
the  same  party  as  Bayard,  and  second  to  him  in  the  leadership  and 
unscrupulous  political  intrigueing  of  his  day  in  the  Province  of  New 
York,  he  fully  merits  a  share  of  the  opprobrium  which  honest  criticism 
must  pronounce. 

ICOLLS  (or  NICOLL),  AVILLIAM  (born  in  1702;  died  in 
1768),  was  the  son  of  the  preceding,  and  his  wife,  Anne, 
daughter  of  Jeremias  Van  Rensselaer  and  widow  of  Kilian 
Van  Rensselaer,  her  cousin.  He  was  well  educated,  studied 
law  with  his  father,  and  was  a  successful  practitioner  and  long  a  mem- 
ber of  the  assembly.  He  was  first  elected  to  that  body  in  1739,  and 
served  in  it  continuously  for  twenty-nine  years,  until  his  death. 
During  the  last  nine  years  he  was  speaker  of  the  house.  He  died 
without  issue,  never  having  married. 


OYES.  WILLIAM  CURTIS  (born  in   Scnodack,  Rensselaer 

county,  New  York,  August  19,  1805  ;  died  in  New  York  City, 

December  25,  1S6+),  was  one  of  the  foremost  leaders  of  the 

New  York  bar.     He  did  not  receive  a  college  education.     At 

the  aue  of  fourteen  he  beaan  the  studv  of  law.     He  was  admitted  to 


432  HISTORY    OF  THE   BEXCII    AND   BAR   OF   NEW    YORK 

the  Supreme  Court  bar  in  1S27  at  Albany  and  then  went  to  Utica  to 
practice.  After  a  short  period  of  professional  life  in  Utica  he  removed 
to  New  York  City,  There  he  quickly  established  himself  as  one  of 
the  prominent  lawyers.  His  practice  in  commercial  cases  became  one 
of  the  largest  in  the  city,  and  he  was  also  very  conspicuous  as  an 
advocate.  Among  the  noted  suits  he  was  engaged  in  were  the  Rose 
will  case,  involving  the  principles  of  resulting  trusts ;  the  Schuylei- 
over-issue  of  stock  case,  in  which  the  officer  of  a  railway  company  had 
forged  stock  certificates  and  negotiated  them,  and  out  of  which  several 
hundred  suits  arose,  Mr.  Noyes  having  charge  of  all  the  litigations 
in  behalf  of  the  railway ;  and  the  Huntington  case,  where  a  Wall 
street  broker,  tried*  for  forgery,  set  up  the  plea  of  insanity — a  plea 
which  was  made  of  no  avail  by  Mr.  Noyes'  masterly  analysis  of  moral 
insanity,  the  accused  being  convicted  despite  the  very  able  conduct  of 
the  defence  by  James  T.  Brady. 

In  1857  he  was  chosen  by  the  legislature  as  one  of  three  com- 
missioners to  codify  the  laws  of  New  York,  David  Dudley  Field  and 
Alexander  Bradford  being  his  associates.  Although  the  code  they 
drafted  was  never  adopted,  that  part  of  it  which  Mr.  Noyes  prepared 
has  been  very  highly  commended.  In  1857  he  was  a  candidate  for 
attorney-general  of  the  state,  but  was  defeated.  He  was  a  delegate  to 
the  peace  conference  at  Washington. 

He  collected  a  remarkable  library  of  legal  and  other  works,  which 
he  bequeathed  to  Hamilton  College.  His  income  from  practice  is  said 
to  have  been  as  high  as  $100,000  a  year  during  the  latter  portion  of  his 
life.  He  was  noted  for  his  generosity  and  courteous  bearing,  and  his 
honesty  and  integrity  were  never  questioned  by  the  bench  or  bar.  At 
a  bar  meeting  held  after  his  death  Charles  O'Conor  said,  "  William 
Curtis  Noyes  honored  the  names  of  Christian  and  gentleman,  and  his 
decease  is  a  loss  not  only  to  his  profession,  but  to  the  country." 


OXON,  B.  DAVIS  (born  in  Poughkeepsie,  New  York,  in  178S  ; 
killed  on  the  railroad  at  Syracuse,  New  York,  May  13,  1809), 
received  a  common  school  and  academic  education,  studied 
law  under  the  direction  of  Philo  Ruggles,  and  was  admitted 
to  the  bar  in  1809.  He  then  engaged  in  practice  at  Marcellus,  Onon- 
daga county.  For  a  number  of  years  his  business  was  contined  to  jus- 
tices' courts.  In  1829  he  removed  to  Onondaga  Hill,  then  the  county- 
seat,  and  eleven  years  later  to  Syracuse,  where  he  formed  an  association 
with  Elias  W.  Leavenworth  and  continued  to  practice  until  his  death, 
becoming  one  of  the  most  eminent  members  of  the  state  bar. 

He  was  specially  distinguished  in  land  suits  involving  matters 
appertaining  to  the  military  tract,  and  he  also  had  a  high  re})utati()n 
for  his  familiarity  with  questions  of  abstract  law.  He  was  frequently 
employed  in  important  criminal  suits — notably  the  case  of  Wilbur,  tried 


IIISIOKY    OK     IlIK    liKNCII     AM)    I!Ai;    OK    Ni:\V    "idllK  4'.l'.i 

ill  ^fadison  county  for  iimrdtT  ;  llir  Kih'y  <'as«'  at  Hatavia,  in  which  lio 
was  coiiiuscl  for  the  people;  lliat  of  Marsh  rs.  iliitchiiisoii  ;  tliatof 
Kandall  at  Hallstoii  Spa,  in  which  .loim  Van  Huren  was  liis  associate- 
counsel  and  .lolin  K.  Porter  and  Samuel  Stevens  appeared  on  theotlier 
side;  and  the  very  celebrated  case  of  Hubbard  rs.  Iiri<;^s,  tried  at  the 
Wayne  circuit  in  1844  and  afterward  six  or  seven  times  at  circuit  and 
(m  apjieal  in  the  Sui)reme  Court  and  Court  of  Apptuils,  which  for 
twenty  years  occui)ied  tlie  most  distiii<::uislied  hiwyers  of  the  state. 

Honorable  C.  B.  Sedgwick,  in  a  memorial  address  on  Mr.  Noxon, 
speaking  of  his  abilities  as  a  nisi  prius  lawyer,  said  : 

In  knowlednfe  of  this  brancli  of  the  law,  in  careful  preparation,  in  the  acumen 
necessary  to  mark  every  nice  (listinction,  in  tlie  sifill  to  detect  and  expose  fraud  and 
perjury,  in  bolchiess,  tact,  pertinacity  in  his  hard  lo<ric  for  the  court,  and  his  skillful 
appeals  to  juries,  he  was  in  the  front  rank  of  his  profession. 


OXON,  JAMES  (born  in  Onondaga  Hill,  New  York,  May  17, 
1818 ;  died  in  Syracuse,  New  York,  January  0,  1881),  was  a 
son  of  the  preceding.  "  On  his  mother's  side,  who  was  a  Van 
Kleeck,  he  was  descended  from  an  old  Knickerbocker  family 
of  Dutchess  county.  He  prepared  for  college  at  Homer  Academy,  and 
after  a  brief  attendance  at  Hamilton  College  entered  Union,  from 
which  he  was  graduated  in  1838.  He  read  law  in  his  father's  office, 
and  afterward  took  the  course  at  the  Yale  Law  School,  being  admitted 
to  the  bar  in  New  York  in  1842.  Locating  at  Syracuse  he  first  prac- 
ticed with  his  father  and  then  organized  the  law  firm  of  Noxon  & 
Putnam.  Later  he  was  associated  with  Sidney  T.  Fairchild.  of  Caze- 
novia,  and  later  still  with  George  D.  Cowdes.  He  was  elected  to  the 
state  senate  from  Onondaga  county  in  1856  and  again  in  1858.  In 
1875  he  was  elected  judge  of  the  Supreme  Court  of  the  state  for  a  term 
of  fourteen  years,  to  succeed  Judge  Morgan. 


YE,  JAMES  WARREN  (born  in  De  Ruyter,  Madison  county, 
New  York,  June  10,  1814  ;  died  in  White  Plains,  New  York, 
December  25,  1876),  attended  Cortland  Academy,  at  Homer, 
New  York,  studied  law  at  Troy,  and  engaged  in  practice  in 
Madison  county,  where  he  soon  w^on  recognition  as  a  lawyer  and  dem- 
ocratic orator.  He  first  served  as  district-attorney,  and  between  1840 
and  1848  was  county  judge  of  Madison  county.  He  ran  for  congress 
on  the  free-soil  ticket  in  1848,  but  was  defeated.  During  the  next  few 
years  he  practiced  at  Syracuse,  whither  he  had  removed,  and  in  1857 
came  to  New  York  City  to  accept  the  position  of  president  of  the 
newly-created  metropolitan  board  of  police.  His  connection  with  this 
office  ceased  in  1860,  when  he  accompanied  William  H.  Seward  through 
the  west  on  a  tour  of  speech-making  in  the  interest  of  the  republican 
party. 


434 


HISTORY  OF  THE  BENCH  AND  BAR  OF  NEW  YORK 


Appointed  governor  of  tlie  territory  of  Nevada  by  President  Lin- 
coln in  1861,  he  exerted  a  powerful  influence  on  the  Paciflc  slope  in 
favor  of  the  federal  government,  and  was  largely  instrumental  in  main- 
taining the  loyalty  of  that  section  of  the  country  during  the  civil  war. 
He  was  also  energetic  in  bringing  about  the  admission  of  Nevada  as  a 
state,  and  was  one  of  the  iirst  United  States  senators  from  that  com- 
monwealth. He  drew  the  short  term,  from  I860  to  1867,  but  in  the  lat- 
ter year  was  re-elected  by  the  legislature  for  a  full  term. 


VKLEY,  THOMAS  J.  (bom  in  Dutchess  county,  New  York, 
in  1TS3  ;  died  in  New  York  City,  May  11, 1857),  was  the  son  of 
a  farmer.  He  entered  Yale  in  1797  and  graduated  in  1801. 
Immediately  after  leaving  college  he  commenced  the  study 
of  the  law  in  Poughkeepsie,  being  admitted  to  the  bar  in  18U4.  In 
1813  and  1815  he  was  elected  to  congress.  He  resumed  his  practice 
at  Poughkeepsie  in  1817.  After  serving  in  the  legislature,  he  was 
appointed,  in  1821,  attorney-general  of  the  state.  In  1827  he  was 
again  elected  to  congress,  but  resigned 
his  seat  the  next  j^ear  to  become  a  judge 
of  the  then  newly  -  created  Superior 
Court  of  the  City  of  New  York.  His  first 
associates  on  this  bench  were  Samuel 
Jones  and  Josiah  Ogden  Hoffman. 
Jones,  who  had  been  chancellor,  was 
chosen  chief -justice,  and  continued  in 
that  capacity  until  1847,  when  Judge 
Oakley  succeeded  him,  retaining  the 
position  until  his  death. 

Before  he  went  on  the  bench  he  had 
been  employed  as  counsel  in  highly  im- 
portant cases.  In  the  celebrated  contro- 
versy concerning  the  exclusive  right  of 
navigating  the  waters  of  New  York  by 
steam,  granted  to  the  inventor,  Fulton, 
and  his  patron,  Chancellor  Livingston 
(reported  in  ^Vheaton's  reports  under  the  title  of  Gibbons  vs.  Ogden), 
Mr.  Oakley  bore  a  leading  part  as  the  advocate  of  the  rights  of  his 
native  state.  Thomas  Addis  Emmet  was  his  associate  in  this  suit, 
and  AVebster  and  AVirt  were  opposed  to  him.  He  also  was  conspicu- 
ous in  the  notable  litigations  that  sprang  up  in  New  York  between  the 
landlords  of  large  tracts  of  land  and  their  tenants— the  well-known 
"manor  grants  question."  He  distinguished  himself  greatly  on  the 
bench.  The  opinions  he  delivered  made  the  Superior  Court  a  very  high 
authority  on  subjects  of  commercial  law. 


'  ^ 


IIISTOUY    <»K   'I'lIK    IU:.N<I1    AM»    IfAK    (»l'    .\i;\V     VuUK  llif) 

(H)N()K\  (!ll.\KMil-:s  (I.oni  in  Nrw  York  City,  Janimry  22, 
ISOl;  (iifd  in  Niiiiliickcl,  Massacliiisctls,  May  12,  IHH4),  was 
for  forty  yeai's  the  ackiiowlcd^n'd  Icadci-  of  the  Ncnv  York 
bar.  He  was  descended  from  an  old  and  dislin«ruished  fam- 
ily Iivin<;  for  generations  in  the  Province  of  (^)nnau,nlit,  Ireland.  His 
father  emigrated  to  New  York  in  1801  and  en<j:a^ed  in  various  literary 
antl  journalistic  (Miteri)ri.ses.  The  son  received  almost  no  education. 
He  entered  a  lawyiM-'s  ollice  at  thirteen  years  of  a<i:e,  and  be<]jan  to  care- 
fully study  Blackstone  and  Coniyn's  Dig-est.  He  used  afterward  to 
say:  "I  comi)reliended  Blackstone  at  that  time  as  thoroughly  as  I  do 
now."  In  1824,  at  the  age  of  twenty,  he  was  admitted  as  an  attorney 
of  the  Court  of  Common  Pleas.  By  tlie  rules  existing  at  tliat  time  an 
attorney  was  not  permitted  to  make  a  motion  or  argue  any  matter ; 
this  could  be  done  only  by  a  counsellor,  and  no  one  could  be  a  coun- 
sellor unless  he  had  practiced  two  years  as  an  attorney  and  achieved 
considerable  reputation  in  the  lower  courts.  In  Mr.  O'Conor's  case  a 
very  unusual  exception  was  made.  On  account  of  his  remarkable  abili- 
ties he  was  admitted  as  a  counsellor  after  practicing  only  three  months 
as  an  attorney.  In  1827  he  was  admitted  to  practice  in  the  Supi-eme 
Court  and  the  Court  of  Chancery  as  attorney,  solicitor,  and  counsellor, 
which  also  was  an  exceptional  proceeding,  for  the  rules  required  prac- 
tice as  attorney  and  solicitor  prior  to  admission  as  counsellor. 

In  the  same  year  he  succeeded  in  a  cause  that  gave  him  much  cele- 
brity among  the  catholic  population  of  the  city.  At  the  annual  trus- 
tees' election  of  the  catholic  church  in  Barclay  street  there  had  been 
an  exciting  contest  in  which  the  prevailing  party  had  obtained  a  ma- 
jority of  only  two  votes.  Upon  examination  of  the  register  of  names 
of  those  who  had  participated  in  the  election  it  was  found  that  two 
votes  had  been  fraudulently  deposited  in  the  names  of  qualified  per- 
sons who  had  recently  died.  The  defeated  faction  engaged  the  services 
of  Dudley  Selden,  a  lawyer  of  considerable  prominence,  and  Thomas 
Addis  Emmet,  the  most  distinguished  advocate  of  the  day,  who  made 
application  to  the  Supreme  Court  for  a  writ  of  quo  warranto  to  set 
aside  the  election.  The  other  side  retained  Mr.  O'Conor.  He  took  the 
ground  that  it  was  incumbent  on  his  opponents  to  show  not  only  that 
two  illegal  ballots  had  been  cast,  but  that  they  were  cast  for  the  pre- 
vailing candidates,  and  would,  if  rejected,  put  those  candidates  in  the 
minority.  This  view  was  taken  by  the  court  and  the  application  was  de- 
nied. Another  case,  about  the  same  time,  in  which  he  procured  the  setting 
aside  of  the  election  of  an  alderman,  gave  him  a  more  general  reputa- 
tion, as  it  displayed  to  a  highly-interested  auditory  his  peculiar  skill 
in  eliciting  facts  and  his  trenchant  mode  of  conducting  a  controversy. 
He  also  successfully  conducted  before  the  county  court — then  composed 
of  the  first  and  associate  judges  of  the  Common  Pleas  and  the  alder- 
men of  the  city— a  notable  suit  for  the  removal  of  a  clerk  of  the  jus- 
tices' court  for  improper  behavior. 


436  HISTORY   OF   THE   BENCH   AND    BAR   OF   NEAT   YORK 

But  althongli  he  gradually  acquired  a  considerable  practice  in 
minor  litigations,  it  was  fulh^  twenty  years  before  he  began  to  be 
retained  in  particularly  weighty  mattei's.  The  first  really  great  case 
committed  to  him  was  the  Lispenard  will  suit.  By  skillful  examina- 
tion of  witnesses  he  succeeded  in  establishing  that  the  testatrix,  Alice 
Lispenard,  had  not  sufficient  mental  capacity  to  make  a  valid  disposi- 
tion of  her  real  estate.  In  the  Slave  Jack  case  and  the  Lemmon  slave 
case  he  was  counsel  for  the  slaveholders.  In  the  celebrated  Forrest 
divorce  case  he  manifested  an  ability,  zeal,  and  perseverance  rarely 
equalled.  After  a  litigation  of  nineteen  years  he  obtained  and  col- 
lected for  Mrs.  Forrest  a  judgment  of  some  $64,000."  Among  the  other 
noted  suits  in  Avhich  he  was  chief  counsel  were  the  Parish  Avill  case  and 
the  Jumel  suit. 

He  was  one  of  the  counsel  opposed  to  the  Tweed  ring,  and  it  was 
largely  through  his  efforts  that  that  corrupt  combination  was  broken 
up.  In  1877  he  was  counsel  for  Mr.  Tilden  before  the  electoral  com- 
mission when  the  Florida  returns  were  argued. 

James  C.  Carter  has  said  of  him  : 

I  believe  it  would  be  tbe  deliberate  judgment  of  those  who  have  enjoyed  a  close 
acquaintance  with  Mr.  O'Conor  and  have  frequently  witnessed  bis  various  powers  in 
their  full  activity,  and  observed  the  prodigious  extent  of  his  acquirements,  that  he 
was,  all  things  considered,  the  profoundest  and  best-equipped  lawyer  that  has  ever 
appeared  at  this  bar,  and  that  he  would  not  suffer  in  a  comparison  with  the  great 
lawyers  of  any  nation  or  any  time. 

Throughout  life  he  was  a  democrat  of  the  extreme  school,  and 
during  the  war  he  was  not  identified  with  the  cordial  supporters  of  the 
government.  He  became  counsel  for  Jefferson  Davis  when  the  indictment 
for  treason  was  brought  against  the  southern  leader.  In  1872  he  was 
the  presidential  candidate  of  that  branch  of  the  democratic  part}'  which 
refused  to  accept  the  nomination  of  Greeley,  but  he  did  not  carry  a 
single  state.  During  his  last  years  he  lived  at  Nantucket,  Massachu- 
setts. In  his  will  he  left  a  large  sum  of  money  to  the  New  York  Law 
Institute  Library  and  also  about  one  hundred  volumes  of  records  of  his 
own  cases.  The  rejjorts  of  litigations  in  which  he  was  engaged  are  dis- 
tributed over  more  than  two  hundred  and  fifty  official  volumes,  and, 
considering  the  importance  of  many  of  these  litigations,  the  significant 
questions  they  have  settled,  and  the  vast  interests  they  have  inv  olved, 
it  cannot  be  doubted  that  his  place  in  the  annals  of  the  bar  and  the 
jurisprudence  of  New  York  is  clearly  at  the  head  of  practicing 
lawyers. 

The  only  political  office  he  held  in  all  his  career  was  that  of  United 
States  district-attorney  for  the  southern  district  of  New  York  during  a 
portion  of  President  Pierce's  administration. 

'  Sec  p.  204  of  this  volume. 


iiisroKY  OK   iiiK  in;\(ii   .\\i>  kau  ok  nkw   voi;k  -IM 

TKJDKX,  DAVID  (horn  in  Newark,  New  Jersey,  about  1707 ; 
(lied  in  Whitestone,  New  York,  in  June,  ISOO),  ran  liardly 
he  claimed  as  a  New  York  lawyer,  al(hou<,di  Ik^  tried  many 
famous  cases  in  New  York  City.  He  was  tlu;  l(^adin<(  prac- 
titioner of  the  New  Jersey  har  of  liis  day,  and  was  one  of  tlu;  ^i-eat 
lawy(M"s  whose  fame  exten(h'd  tliroughout  the  colonies.  He  was  gradu- 
ated from  Yale  College  in  172S  ;  .studied  law  in  Newark,  New  Jersey  ; 
was  successively  a  member  of  the  New  Jersey  i)iovincial  council,  a 
justice  of  the  Superior  Court  and  a  justice  of  the  Supreme  Court.  He 
was  a  loyalist  during  the  Revolution,  and  left  this  country  to  take  up 
his  abode  in  England.  In  1789  he  returned,  residing  afterward  at 
AVhitestone,  New  York. 


GDEN,  THOMAS  LUDLOW  (born  in  Morristown,  New  Jersey, 
December  12,  1773  ;  died  in  New  Y''ork  City,  December  17, 
1844).  was  tlie  son  of  Abraham  Ogden,  a  well-known  lawyer 
of  Morristown,  New  Jersey,  and  a  grandson  of  David  Ogden, 
noticed  above.  He  was  graduated  from  Columbia  College,  studied  law 
with  his  father  and  with  Richard  Harison,  and  was  admitted  to  the 
bar  in  New  Y'ork  City  in  170fi.  For  some  time  he  was  associated  in 
practice  with  Alexander  Hamilton,  often  handling  the  important  cases 
of  that  great  statesman  when  the  latter  was  unable  to  be  present. 

He  gained  wide  recognition  for  great  legal  abilities,  and  was  in 
the  enjoyment  of  one  of  the  largest  corporation  practices,  if  not  the 
largest,  in  the  City  of  New  York.  Among  his  clients  was  the  Holland 
Land  Company,  a  notable  corporation  of  those  days,  owning  an  im- 
mense tract  of  3.()()(),0()0  acres  in  western  New  Y'ork.  Many  of  the 
Avell-known  institutions  of  the  City  of  New  Y'ork  enjoyed  the  advant- 
age of  Mr.  Ogden's  services,  jn'ofessional  or  otherwise.  For  thirty-five 
years  lie  was  clerk  and  a  vestryman  of  Trinit}^  church.  He  was  a  trus- 
tee of  Columbia  College  from  1817  until  his  death,  and  he  was  one  of 
the  founders  and  vice-president  of  the  society  for  promoting  religion 
and  learning  in  the  State  of  New  York,  an  organization  connected  with 
the  protestant  episcopal  church.  He  was  one  of  the  original  trustees 
of  the  General  Theological  Seminary,  was  sole  trustee  of  Sackett's 
Harbor,  and  was  a  trustee  of  the  lands  of  the  Indian  reservation. 


'GORMAN,  RICHARD  (horn  in  Dublin,  Ireland,  in  1820; 
died  in  New  York  City,  February  28,  189.5),  was  the  son  of  a 
wealthy  merchant  of  Dublin,  graduated  from  Trinity  College 
and  began  the  practice  of  law  in  his  native  city.  One  of 
the  founders  of  the  Y^oung  Ireland  party  of  1848,  he  soon  became 
entangled  in  its  troubles  and  was  finally  indicted  for  high  treason  with 
John  Mitchell  and  Thomas  Francis  Meagher.  He  disguised  himself 
as  a  traveller,  and  after  spending  some  time  on  the  continent  came  to 


438  HISTORY   OF  THE   BENCH   AND   BAR   OF  NEW  YORK 

America,  settling  in  Saint  Louis.  Removing  to  New  York  City,  he 
practiced  law  until  1865,  when  he  was  appointed  corporation  counsel, 
serving  two  terms  in  that  office.  In  1870  he  was  a  commissioner  of  im- 
migration and  in  1883  he  was  elected  a  judge  of  the  Superior  Court  of 
the  City  of  New  York.  He  retired  in  1890,  having  reached  the  age  of 
seventy  years. 

LIN,  ABRAM  BALDWIN  (born  in  Shaftesbury,  Vermont,  in 
1808  ;  died  in  the  City  of  Washington,  July  7,  1879),  Avas 
graduated  from  Williams  College  in  1835,  and  studied  law  at 
Troy,  New  York,  where  he  was  admitted  to  the  bar.  Between 
1838  and  1841  he  held  the  office  of  recorder  of  Troy.  He  was  a  repub- 
lican, and  as  such  was  elected  to  congress,  serving  three  consecutive 
terms,  from  1857  to  1863.  He  was  appointed  a  justice  of  the  Supreme 
Court  of  the  District  of  Columbia  in  1863,  and  remained  upon  that  bench 
until  his  death.  

i  SBORN,  AUSTIN  MELYIN  (born  in  Windham,  Greene  coun- 
ty. New  York,  December  2,  1835  ;  died  in  October,  1886),  was 
the  son  of  Henry  Osborn  and  Sarah  Loomis.  He  received  a 
classical  education  under  private  tuition,  and  at  the  age  of 
seventeen  entered  upon  the  study  of  law  at  Windham  in  the  office  of 
Danforth  R.  Olney.  In  1854  he  removed  with  Mr.  Olney  to  Catskill, 
the  county  seat  of  Greene  county,  and  upon  admission  to  the  bar 
formed  at  once  a  partnership  with  his  preceptor,  which  continued  for 
several  years.  Afterward  he  practiced  alone.  In  1865  he  was  elected 
district-attorney  of  Greene  county,  serving  the  full  term.  In  1870  he 
was  appointed  county  judge  and  surrogate.  Governor  Tilden  in  1875 
appointed  him  a  justice  of  the  Supreme  Court  of  the  state  in  place  of 
Judge  Theodore  Miller,  who  had  been  elevated  to  the  Court  of  Appeals 
bench.  In  the  ensuing  fall  he  was  nominated  and  elected  to  the  Su- 
preme Court  for  the  full  term  of  fourteen  years. 

As  a  practitioner  Judge  Osborn  was  engaged  in  nearly  every  civil 
case  of  importance  in  Greene  county.  His  career  on  the  bench  while 
his  health  remained  was  marked  by  "  courteous  and  dignified  manners, 
unquestionable  uprightness  and  fairness,  and  a  remarkable  kindness 
and  considerateness."  '  His  death  was  premature,  at  the  age  of  fifty- 
one  years,  resulting  from  an  incurable  ailment  which  for  a  considerable 
period  had  incapacitated  him  for  the  labors  of  the  bench. 


ADDOCK,  FRANKLIN  A.  (born  in  Glens  Falls,  New  York, 

January  30, 1827  ;  died  in  New  York  City,  January  22, 1890), 

was  the  son  of  Ira  A.  Paddock,  a  successful  lawyer,  of  New 

England  ancestry,  and  a  brother  of  United  States  Senator 

Paddock  of  Nebraska.    He  was  graduated  from  Union  College  with 

»  The  Green  Bag,  Vol.  xxiii.,  p.  302. 


llIsrolJY    Ol'     rilK    IJKNCll    AM)    H.Wi    OF    NKW    Vol.'.v  4'^0 

lionors  ill  1847,  :it  llie  a<;v  of  Iwciily,  I)t'iii<r  the  yoim^^cst  in  his  class, 
lie  came  to  New  Yoi'k  City  and  stndied  law  with  Iloiioial)lc  .lames  \V. 
White,  and  after  his  admission  to  tlie  bar  })racticed  continuously  and 
successfully  in  the  Jiietroi)olis,  actiuiiin^  a  lar<;e  (^or])oration  business. 
The  law  iirni  of  which  he  was  the  head,  l*a<ldock  &  (Jannon,  had  been 
ill  existence  for  more  tlian  a  quarter  of  a  century  at  the  time  of  his 
death.  "  While  he  was  not  distinii:uished,"  says  Mr.  AVilliam  P. 
Chambers,  "by  shining  power  of  elocpience  as  an  advocate,  lie  was 
capable  of  clear  and  etTective  presentation  of  cases  at  ni.'ii  2^ff^t^-'^/  find 
before  the  conrt  in  banc  he  came  with  all  needful  learning  and  logical 
])ower."  lie  was  a  student  of  French  literature,  wrote  consideral)le 
along  historical  and  biograi)hical  lines,  and  was  much  interested  in 
political  reform.    As  a  young  man  he  was  an  active  x>olitical  speaker. 


AIGE,  ALONZO  CHRISTOPHER  (born  in  Schaghticoke, 
Rensselaer  connty.  New  York,  Juh"  31,  1797  ;  died  in  Sche- 
nectady, New  York,  March  31,  1868),  after  being  graduated 
from  AVilliams  College,  in  1812,  began  to  prepare  for  the 
ministry,  bnt  jiresently  abandoned  theology  for  the  law.  He  prose- 
cuted his  legal  studies  at  Schenectady,  was  there  admitted  to  the  bar  in 
1819,  and  at  once  commenced  to  practice.  He  became  somewhat  act- 
ive in  public  life.  For  four  successive  terms,  from  1826,  he  was  a 
member  of  the  assembly. 

From  1828  to  1846  (when  the  court  ceased  to  exist),  he  was  the 
reporter  of  the  Court  of  Chancery,  and  compiled  some  eleven  volumes 
of  "  Reports  of  Cases  in  the  Court  of  Chancery  "  (New  Y'ork,  1830-48), 
of  which  four  volumes  were  revised  and  annotated  by  him  at  a  later 
period  (IS-^e-.^'w).  From  1837  to  1842  he  was  a  member  of  the  state 
senate.  Elected  to  the  Supreme  Court  in  1847,  he  served  four  years, 
subsequently  sitting  upon  the  same  bench  for  another  two  years  upon 
his  election  to  till  a  vacancy  in  1855.  His  opinions  are  considered  able. 
He  was  an  active  member  of  the  constitutional  convention  of  1867. 


g|AINE,  ELLTAH  (born  in  Williamstown,  Vermont,  April  10, 
1706  ;  died  in  New  York  City,  October  6,  18.13).  was  the  son 
of  Honorable  Elijah  Paine,  the  Vermont  jurist  and  United 
States  senator.  Having  been  graduated  from  Harvard 
College  in  1814,  he  prosecuted  his  law  studies  at  Litchfield,  Connec- 
ticut, and  was  presently  engaged  in  the  compilation  of  law  reports. 
Becoming  a  partner  of  Henry  AVheaton,  he  assisted  in  the  preparation 
of  the  twelve  volumes  of  the  latter's  "  Reports  of  the  United  States 
Supreme  Court  from  1816  till  1827."  He  is  the  author  of  Paine's 
"United  States  Circuit  Reports  "(New  York,  1827),  and  issued  two 


440  HISTORY   OF  THE   BENCH   AND   BAR   OF   NEW   YORK 

volumes  of  "  Practice  in  Civil  Actions  and  Proceedings  in  the  State  of 
New  York  "  (1830),  in  conjunction  with  the  well-known  John  Duer. 

For  three  years,  from  1850  to  1853,  he  was  a  justice  of  the  Supreme 
Court  of  New  York  City,  and  as  such  distinguished  himself  by  his 
able  decision  in  the  famous  Lemmon  slave  case. 


|ALMER,  GEORGE  WASHINGTON  (bom  in  Ripley,  Chau- 
tauqua county.  New  York,  June  7, 1S35  ;  died  in  New  York 
City,  January  2, 1887),  was  graduated  from  the  Albany  Law 
School  in  1857.  He  practiced  his  jirofession  in  New  York 
City  between  the  periods  of  office-holding.  He  was  assistant-clerk  of 
the  United  States  senate  ;  held  a  position  in  the  war  department ;  was 
captain  and  provost-marshal  of  the  31st  district  of  New  York  ;  military 
secretary  to  Governor  Fenton  ;  commissary-general  of  ordnance  of  New 
York  with  the  rank  of  brigadier-general ;  quartermaster  ;  appraiser  of 
customs  of  New  York  City,  and  later  in  charge  of  the  law  department 
of  the  custom  house. 


ARKER,  AMASA  JUNIUS  (born  in  Sharon,  Litchfield  county, 
Connecticut,  June  2,  1807  ;  died  in  Albany,  New  York, 
May  13, 1890),  was  the  son  of  Reverend  Daniel  Parker,  for 
twenty  years  pastor  of  the  congregational  church  at  Sharon. 
He  was  educated  under  the  personal  supervision  of  his  father,  who  re- 
moved with  his  family  to  the  State  of  New  York  when  the  son  was 
nine  years  old.  In  1823  he  was  appointed  principal  of  Hudson 
Academy,  New  York,  and  in  1825  presented  himself  for  examination 
at  Union  College  for  the  degree  of  A.  B.,  being  graduated  with  the 
class  of  that  year.  He  resigned  his  principalship  in  1827  to  study  law 
with  Honorable  John  W.  Edmonds.  He  completed  his  legal  studies  in 
the  office  of  his  uncle,  Amasa  Parker,  at  Delhi,  Delaware  county,  New 
York,  was  admitted  to  practice  in  October,  1828,  and  became  a  partner 
of  his  uncle,  the  firm  A.  &  A.  J.  Parker  becoming  one  of  the  most 
eminent  and  successful  in  the  state.  When  he  was  called  from  the 
bar  to  the  bench  he  was  familiar  with  the  circuits  in  Delaware,  Greene, 
Ulster,  Schoharie,  Broome,  Tioga  and  Tompkins  counties,  and  it  was 
said  of  him  that  he  had  tried  more  cases  in  the  circuit  courts  than  any 
lawyer  of  his  age.  In  1832  he  was  surrogate  of  Delaware  countj^  and 
the  following  year  was  appointed  district-attorney,  serving  three  years. 
The  same  year  he  was  elected  to  the  state  assembly  without  opi)osition. 
He  here  displayed  such  scholarly  attainments  that  he  was  chosen  by 
the  legislature  a  member  of  the  board  of  regents— the  youngest  mem- 
ber at  that  time  ever  elected,— a  post  which  he  filled  for  ten  years.  In 
the  fall  of  1836  he  was  elected  to  the  25th  congress,  serving  from  1837 
to  1839.     He  became  judge  of  the  3d  circuit  in  1844  and  removed  to 


IHSIOKY    OK     rilK    HKNCII    AM)    MAU    OK    NKW    VolIK  -J4I 

Albany,  \vlior«'^  he  residiul  until  his  Heath.  He  was  on  tiie  l)en('h 
(liiiini;-  the  celebrated  anti-rent  trials,  when  at  one  time  (in  184.'))  there 
were  two  hundred  and  forty  lu'rsons  arrested  and  indicted  and  in  cus- 
tody awaiting-  trial  at  Delhi.  II«^  dispatched  the  entire  business  in 
three  weeks'  time.  In  18.5-i  he  was  elected  to  the  Supreme  Court  bench, 
serving  one  term,  one  year  of  which  be  sat  as  a  judge  of  the  Court  of 
Appeals. 

lie  received  the  democratic  nomination  for  governor  in  1850,  run- 
ning against  John  A.  King,  but,  although  he  polled  some  10,000  votes 
more  than  tht^  Biu'hanan  electoral  ticket,  was  d(>feated.  He  was  again 
defeated  for  governor  as  a  candidate  against  Kdwin  D.  Morgan  in  1858. 
In  1867  he  was  elected  a  member  of  the  convention  for  the  revision  of 
the  state  constitution. 

Judge  Parker  was  throughout  his  life  devoted  to  educational 
interests,  being  connected  in  important  positions  with  various  institu- 
tions. With  Judge  Harris  and  Amos  Dean  he  founded  the  Albany 
Law  School.  The  office  of  United  States  attorney  for  the  southern  dis- 
trict of  New  York  Avas  offered  him  in  1859,  but  was  declined.  The 
"  Reports  of  the  Decisions  in  Criminal  Cases  "  (1858-77)  were  edited  by 
him,  and  he  assisted  in  the  compilation  of  the  three  volumes  of  "  Re- 
vised Statutes  "  (1859).  He  also  prepared  six  volumes  of  law  reports, 
published  at  Albany,  1855-69. 


|ARSOXS,  GEORGE  W.  (born  in  Spencertown,  Columbia 
county.  New  York,  August  24, 1823  ;  died  in  New  York  City^ 
January  12,  1887),  w^as  graduated  from  Williams  College  and 
Yale  Law  School,  and  afterward  read  law  in  the  office  of 
Theodore  Sedgwick,  in  New  York  City.  He  was  admitted  to  the  bar 
in  1843,  at  the  age  of  twenty,  and  soon  after  went  into  partnership 
with  D.  P.  Barnard.  He  next  became  a  member  of  the  firm  of  Parsons 
&  Riggs,  and  then  of  Barney,  Bunter  &  Parsons,  and  subsequently 
became  counsel  to  the  firms  of  Riggs  &  Denman  and  Taylor  &  Ferris. 

He  served  as  counsel  to  over  thirt}"  insurance  companies,  and  was 
a  recognized  authority  on  insurance  law\  His  opinion  in  the  noted 
case  of  Boone  against  the  iEtna  Insurance  Company,  which  grew  out  of 
the  war.  established  a  valuable  precedent,  and  was  sustained  by  the 
United  States  Supreme  Court.  His  reputation  as  an  insurance  lawyer 
made  him  a  prominent  candidate  for  the  nomination  to  the  office  of 
associate- judge  of  the  Court  of  Appeals  in  the  republican  convention 
held  at  Saratoga  in  1878.  His  opinions  in  all  cases  in  which  he  was 
referee  were  noted  for  soundness  and  ability.  He  was  identified  with 
various  corporations  and  public  institutions,  and  was  a  member  of  the 
syndicate  that  constructed  the  Nickel  Plate  Railroad,  and  its  counsel. 
He  owned  a  beautiful  country  seat  on  the  Hudson. 


442  HISTORY    OF   THE   BENCH    AND   BAR   OF   XEW   YORK 

|m^|AULDIXG,  WILLIAM  (born  in  Tarrytown,  New  York,  in 
nPCr  ^'^^  '  ^^^'^  there,  February  11,  1854 1,  was  the  son  of  William 
1^1^  Panlding,  a  member  of  the  provincial  congress  of  1775  from 
^————^  Suffolk  county,  ISTew  York,  and  nephew  of  the  famous  John 
Paulding,  one  of  the  captors  of  Major  Andre  during  the  Revolution. 
Mr.  Paulding  was  carefully  educated,  and  studied  law  and  practiced 
his  jjrofession  in  IS^ew  York  City.  He  was  elected  to  congress  in  1811, 
and  was  a  brigadier-general  of  volunteers  during  the  war  of  181'2.  He 
was  a  member  of  the  constitutional  convention  of  1S21.  Between  1S24 
and  1826  he  was  mayor  of  the  City  of  Xew  York. 


ECKHAM,  RUFUS  W.  (bom  in  Rensselaerville,  Albany 
county,  New  York,  December  30,  1809  ;  drowned  at  sea, 
November  22,  1873),  the  father  of  Honorable  Wheeler  H. 
Peckham  and  Justice  Rufus  W.  Peckham,  of  the  United 
States  Supreme  Court,  was  graduated  from  Union  College  in  his 
eighteenth  year.  He  read  law  with  Bronson  and  Beardsley,  of  Utica, 
New  i'ork,  both  of  whom  subsequently  became  chief  justices  of  the 
Sujireme  Court  of  the  state,  and  early  acquired  many  of  the  profes- 
sional characteristics  of  his  distinguished  preceptors.  Upon  attaining 
his  majority  he  was  admitted  to  the  bar,  and  going  to  Albany  formed 
a  partnership  with  his  elder  brother,  George  W.  Peckham.  The  new 
firm  was  soon  doing  a  large  business,  being  represented  in  almost  all 
the  leading  cases  of  the  day.  In  1838  Mr.  Peckham  Avas  appointed, 
by  Governor  Marcy,  district-attorney  for  the  city  and  county  of 
Albany,  serving  until  1841.  He  was  a  candidate  before  the  state  legis- 
lature in  1845  for  appointment  as  attorney-general,  but  failed  by  a 
single  vote  after  a  sharp  contest.  He  represented  his  district  in  the 
33d  congress,  during  the  administration  of  Pierce.  He  refused  in 
congress  to  be  bound  by  party  prejudices  against  convictions  of  duty, 
and  opposed  the  passage  of  the  Nebraska  bill.  At  the  expiration 
of  his  congressional  term  he  resumed  his  practice  in  Albany  in  asso- 
ciation with  Lyman  Tremain.  In  the  fall  of  1859  he  Avas  elected  a 
justice  of  the  Sui)reme  Court,  and  he  was  chosen  for  a  second  term 
witliout  opposition.  While  still  on  the  Supreme  Bench  he  was  ap- 
pointed (1870)  a  judge  of  the  Court  of  Aj^peals. 

In  November,  1873,  Judge  Peckham  with  his  wife  sailed  for  Europe 
in  the  steamer  Vllle  du  Havre.  On  the  22d  of  the  month  the  steamer 
collided  with  the  British  ship  Luck  Earn  and  went  down  in  the  dark- 
ness of  night.  Judge  Peckham  and  his  wife  were  among  the  two 
hundred  and  twenty-six  who  perished. 


fl 


W.i 


KET,  WIIJ.IAM  0><»'i  ill  No.  l'-..-.  Williiiiii  siivd,  N.-w 
York  (.'ity,  December  4,  1S22  ;  (lie<l  in  New  York  (Miy,  .Iiiiie 
17,  189;")),  was  the  son  of  Frederick  Toiiiliiison  Peet,  of  Brook 
lyn,  New  York,  aiul  Elizabeth  Lockwood,  bolii  born  in 
Bridgeport,  Connecticut  ;  and  was  in  the  eif^litli  i,a'neratioii  in  lin.:d 
descent  from  .lohn  I'eet,  of  Seven  Oaks  or  Didlicld   Parish,  Eii.^dand, 


444  HISTORY    OF   THE    BENCH   AND   BAK   OF   NEAV   YORK 

who  sailed  from  London  in  1635  with  his  sons,  John  and  Benjamin,  and 
settled  in  Stratford,  Connecticut,  the  following  year.' 

Mr.  Peet  was  educated  in  Brooklyn  at  the  Eames  and  Putnam 
English  and  Classical  Hall,  and  at  other  schools  until  1839,  when  he 
entered  as  clerk  his  father's  store,  in  the  wholesale  dry -goods  busi- 
ness, in  New  York  City.  In  1843,  in  his  twenty-first  year,  he  left  the 
store  and  commenced  studying  under  tutor  Bull  of  Yale  College.  He 
was  graduated  from  Yale  in  1847.  During  his  senior  year,  having 
attended  the  class  in  the  Yale  Law  School,  while  keeping  up  the  reci- 
tations and  lectures  of  the  course  in  college,  he  was  graduated  from 
the  Yale  Law  School  in  1848.  He  removed  to  Utica,  New  York,  and 
entered  the  law  office  of  Honorable  Charles  H.  Doolittle,  afterward 
judge  of  the  New  York  Supreme  Court,  and  was  admitted  to  the  bar 
at  Syracuse,  in  November,  1848.  He  opened  offices  in  New  York  City, 
April  19,  1849.  In  1852,  under  the  firm  name  of  Peet  &  Nichols,  he 
associated  with  himself  Charles  A.  Nichols,  this  association  continu- 
ing from  1852  to  1857.  At  the  latter  date  Mr.  Livingston  K.  Miller 
entered  into  the  partnership,  under  the  style  of  Miller,  Peet  &  Nichols. 
Mr.  Nichols  removed  to  Providence,  Rhode  Island,  in  1866,  and  the 
firm  subsequently  became  Miller,  Peet  &  Opdyke.  After  Mr.  Miller's 
death,  in  1876,  a  partnership  was  formed,  with  Benjamin  H.  Bristow, 
Henry  L.  Burnett,  William  S.  Opdyke  and  David  Miller,  under  the  firm 
style  of  Bristow,  Burnett,  Peet  &  Opdyde.  The  firm  was  subsequently 
reorganized  as  Bristow,  Peet  &  Opdyke,  so  continuing  until  Mr.  Peet's 
death,  when  the  firm  of  Bristow,  Opdyke  &  AVillcox  was  formed. 

During  the  civil  war  Mr.  Peet  was  commissioner  for  drafting 
soldiers  in  Brooklyn.  He  was  successful  in  the  practice  of  law  and 
was  the  author  of  some  fugitive  newspaper  articles,  verses  and  political 
sketches,  published  over  the  signature  of  "  W.  B.  H." 


ENDLETON,  NATHANIEL  (born  in  Culpepper  county,  Vir- 
ginia, in  1756  ;  died  in  New  York  Cit.y,  October  20,  1821), 
distinguished  himself  at  the  battle  of  Eutaw  Springs  in  the 
Revolution.  He  entered  the  i^atriot  army  at  the  age  of  nine- 
teen, and  rose  to  the  rank  of  major  on  the  staflf  of  General  Greene. 
Studying  law  at  the  close  of  the  war,  he  located  in  Georgia,  and  soon 

'The   line  of  descent  is  as  follows:  John  Peet',  Captain  John  Nichols;  William  Pcct ",  born  in  Stratford, 

married  in  England,  Sarah,  daughter  of  KichardOsborn;  now    Trumbull,  Connecticut,    June  1,   ITIiS,    nnirried, 

Benjamin   Peet  2,  of  Stratford,  Connecticut,  born    in  December,  25, 1785,  Jemina,  widow  of  Edmund  Darrow 

England,  married  Phebe,  daughter  of  Richard  Bntler ;  and  daughterof  Zachariah  Tomlinson  and  EmmaLewis; 

Benjamin  Peet  s,  born  in  Stratford,  Connecticut,  August  Frederick  Tomlinson  Peet',  of  Brooklyn.  New  York, 

31,   lti65,  married  Priscilla,  daughter  of  Thomas  Fair-  born  in    Bridgeport,  Connecticut,   December  21,  1T99, 

child  and   Katharine  Craig;   Thomas  Peet«,   born  in  married,  March  12,  1822,  Elizaheth  Loekwootl,  daughter 

Stratford,  Connecticut,  July  15,  lons,  married,  January  of  Lambert  Lockwood  and  Elizabeth  ISoe,  and  grand- 

7,    1724,    Phebe,    daughter   of  Abraham    Nichols  and  daughter  of  Reverend  Doctor  Azel  Roe,  of  Woodbridge, 

Rachel  Kellogg;  William  Peet  »,  born  in  Stratford,  Con-  New  Jersey,  and  Rebecca  Foote,  of  Guilford,  Connec- 

necticut,  January  29, 1743,  married  Beulah,  daughter  of  ticut ;  William  Peet  *,  of  New  York  City. 


iiisroitY  OF  'nil':  iikncii   and  hai:  ok  m:\\'  voi;k  ■M.') 

gained  distinction  in  his  profession.  He  hcciinic  :i  rnitrd  Slates  dis- 
trict jud^c,  and  his  name  was  considenMl  by  Washington  for  tiic  oflice 
of  sccri'taiy  of  state.  He  was  a  member  of  the  convtMifion  of  17^7 
whicli  fi-amed  tiie  United  States  constitution.  Not  being  in  tlie  con- 
vention on  the  linal  (hiy,  his  name  does  not  appear  amon*:;  thi;  signers. 
Condng  to  New  York  City  in  17l)(i,  Judge  Pendleton  soon  commanded 
lecognition  of  liis  legal  talents,  and  was  accorded  a  standing  among 
tlie  leaders  of  the  New  York  bar.  Later  he  became  a  jiulge  of  Dutchess 
county,  where  he  had  a  residence.  Althongh  Alexander  Hamilton  had 
opposed  his  appointment  to  Washington's  cabinet,  under  the  convic- 
tion that  he  was  "  somewhat  tainted  with  the  pi-ejudices  of  Mr.  Jeffer- 
son and  Ml'.  Madison,"  they  became  very  friendly  after  Judge  Pendle- 
ton's removal  to  New  York  City.  The  latter  was  second  to  Hamilton 
in  his  fatal  duel  with  Aaron  Burr. 


W^PIELPS,  BENJAMIN  KI 
jv&y^  chusetts,  September  16, 
^1^    cember  30,  1880),  was  tl 


KINSMORE(born  in  Haverhill,  Massa- 
1832 ;  died  in  New  York  City,  De- 
the  son  of  Dudley  Phelps,  a  congre- 
gational minister.  He  was  graduated  from  Yale  in  the  class 
of  1853,  conspicuous  for  the  subsequent  prominence  attained  by  many 
of  its  members,  including  Andrew  D.  White,  ex-Senator  Randall  L. 
Gibson,  Wayne  McVeagh  and  Edmund  C.  Stedman.  He  studied  law 
in  New  Hampshire  with  Benjamin  Farley,  and  later  with  Townsend, 
Dyett  &  Raymond,  of  New  York  City.  He  was  admitted  to  the  bar 
in  Poughkeepsie  in  1855,  and  the  j^ear  following,  in  partnership  with 
Sherman  W.  Knevals,  commenced  practice  in  New  York  City.  The 
firm  was  reorganized  in  1872  by  the  admission  of  General  Arthur,  and 
was  subsequently  known  as  Arthur,  Phelps,  Knevals  &  Ransom.  In 
1806  he  w^as  appointed  an  assistant  in  the  United  States  district- 
attorney's  office,  having  charge  of  seizure  suits  and  actions  brought 
against  the  collector  of  the  port  for  the  recovery  of  duties  paid  under 
X^rotest.  He  held  the  same  position  under  Edwards  Pierrepont  and, 
for  a  time,  under  Noah  Davis.  He  returned  to  private  jiractice  in  1870, 
taking  an  active  part  in  politics  as  a  republican.  In  1877  he  was  chair- 
man of  the  republican  central  committee,  and  in  1872  received  the 
nomination  of  his  party  for  the  office  of  district-attorney  of  the  city. 
In  1875  he  was  re-elected  to  the  office,  and  again  in  1878,  each  time  by 
increasing  majorities. 

During  his  term  of  office  he  conducted  some  of  the  most  celebrated 
cases  in  the  criminal  annals  of  the  city.  He  secured  the  conviction  of 
the  negroes,  Weston,  Ellis  and  Tliompson,  for  the  murder  of  Abram 
Weissberg,  a  pedlar,  and  they  were  hanged ;  also  of  Dolan,  who  mur- 
dered Noe,  and  of  Sharkey,  the  murderer  who  after  sentence  escaped 

He  con- 


446 


HISTORY    OF   THE   BENCH    AXD    BAR   OF   >'E\V    YORK 


ducted  the  trial  of  Cox,  the  murderer  of  Mrs.  Hull,  and  was  successful 
in  sending  the  Reverend  Mr.  Cowley  to  the  penitentiary  for  inhuman 
treatment  of  Louis  Victor,  an  inmate  of  the  "  Shepherd's  fold."  He 
died  while  still  district-attorney,  at  the  early  age  of  forty-eight. 


•AV 


liJ.i!,^  :  3 


.x>.mAt/' 


3i'^  ^^MM 


IIILIPSE,  FREDERICK  (born  in  New  York  City  in  1690;  died 
there,  in  1751),  was  a  grandson  of  the  founder  of  the  family 
of  the  same  name,  the  rich  merchant  who  became  the  first 
lord  of  the  manor  of  Philipsborough,  in  "Westchester  county, 
New  York.  The  grandson  was  not  a  lawyer,  although  he  had  been 
carefully  educated  in  Europe.  Judicial  positions  were  frequently  con- 
ferred on  laymen  of  wealth  and  social  standing  at  that  period — real 

lawyers,  or  such  by 
training,  being  scarce 
in  the  province.  As 
lord  of  the  manor, 
Philipse  enjoyed  the 
judicial  prerogatives  of 
a  feudal  proprietor. 
Upon  the  bench  of  the 
court  leet  and  that  of 
the  court  baron,  he  ad- 
judicated the  causes 
arising  within  the  juris- 
diction of  his  manor. 
Even  cases  of  life  and 
^^^^^  could  come  be- 
sjA^-     ""^  ■  fore  him.     But  it  was 

his  connection  Avith  the  more  public  courts  of  the  Province  of  New 
York  which  justifies  a  brief  notice  here. 

He  was  appointed  second  judge  of  the  Supreme  Court  on  June  24, 
1731,  and  second  judge  of  the  same  court  on  August  21,  1733.  His 
especial  judicial  distinction,  not  indeed  very  much  to  his  credit,  was 
his  connection  with  the  famous  cases  of  Cosby  vs.  Yan  Dam,  and  the 
prosecution  of  Peter  Zenger  for  libel.  ^^  -^i^ 

In  the  first  of  these  he  was  named  by 
Governor  Cosby,  with  Chief  -  Justice 
Lewis,  Morris  and  James  De  Lancey, 
as  a  court  of  exchequer  to  try  the  governor's  case.  Philipse  and  De 
Lancey  were  the  mere  creatures  of  Cosby  in  tliis  matter,  and  rendered 
such  a  decision  as  he  desired,  Morris  and  the  counsel  for  \"an  Dam — 
Alexander  and  Smith — being  the  lieroes  of  the  case.  At  the  Zenger 
trial  Philipse  and  De  Lancey  revealed  themselves  in  the  same  unfa- 
vorable light. 


■•^)m 


PHILIPSE    MANOR  UOrSE 


)i'   iiii':  i!i:\( 


•111 


TEUKEPONT,  EDWARDS  (l.oni  in  North  Ilav.-n,  Coniicc- 
ticiit,  November  4,  US];};  died  in  New  York  City,  M:ircli  0, 
1S!):2),  was  descended  from  an  old  and  eminent  New  En<,dand 
family.'  lie  went  tlir()n<z:li  the  Hopkins  (irammar  School,  at 
Haven,  and  was  graduated  with  honors  at  Yale.  After  complet- 
iniia  le<;al  course  at  the  New  Haven  Law  School,  under  .lames  Da^<;elt 
and  Hitchcock,  he  went  to  Ohio  (l'S4()),  where  lie  practiced  snccessfidly 
for  six  years  in  i)artnership  with  Honorable  Phineas  B.  Wilcox.  Re- 
turnin<if  to  the  east  he  established  himself  in  New  Y'ork  City,  and 
steadily  made  liis  way  to  the  front  ranks  of  the  profession,  being 
especially  conspicuous  for  his  logical  qualities  and  his  skill  in  cross- 
examining  witnesses.  In  1857  he  was  elected  a  judge  of  the  Supeiior 
Court  to  fill  the  vacancy  caused  by  the  death  of  Chief-Justice  Oakley. 
He  resigned  his  position  on  the  bench  in  October,  1860,  and  resumed 
his  practice. 

A  staunch  democrat  before  the  war.  Judge  Pierrepont  promptly 
announced  his  unqualified  devotion  to  the  government  in  its  time  of 
trial,  and  throughout  the  war  he  was  one  of  its 
most  active  and  inliuential   supporters  in   New  ^Cvi,^  -^  i 
Y'ork.     He  was  one  of  the  speakers  at  the  Union  ^-^^^A-^, 

square  meeting  of  loyal  democrats,  April  20, 1861, 
and  he  co-operated  with  Hamilton  Fish,  A.  T. 
Stewart,  and  other  prominent  New  Y'orkers  in  or- 
ganizing the  union  defence  committee.  "With 
General  Dix  he  was  appointed  in  1862  a  commis- 
sioner to  try  the  prisoners  of  state  confined  in  the 
government  forts  and  prisons.     He  was  a  hearty 

advocate  of  Lincoln's  re-election  in  1864.  In  1867  he  was  employed  by 
the  government  to  take  charge  of  the  prosecution  of  John  H.  Surratt, 
indicted  as  an  accomplice  in  the  assassination  of  President  Lincoln. 
He  served  in  the  same  year  as  a  delegate  to  the  New  York  constitu- 
tional convention,  being  a  member  of  its  judiciary  committee.  In 
the  campaigns  of  1868  and  1872  he  supported  General  Grant's  candi- 
dacy. In  1869  he  was  appointed  United  States  district-attorney  in 
New  York.  Later  he  was  very  conspicuous  in  the  work  of  the  com- 
mittee of  seventy  against  the  Tweed  ring,  resigning  the  office  of  district- 
attorney  to  devote  himself  more  actively  to  this  cause. 

He  became  attorney-general  in  President  Grant's  cabinet  in  1875. 
In  this  position  he  personally  conducted  various  important  cases  in 
behalf  of  the  government — notably  those  of  the  Union  Pacific  Rail- 
road and  the  Arkansas  Hot  Springs.     In  May,  1876,  he  was  appointed 


PIEHREPONT    ARMS. 


'  It?  American  ancestor,  John  Pierrepont,  was  a 
younger  son  of  the  noble  Pierrepont  family  of  Not- 
tingham, England,  which  traced  its  lineage  to  Robert  de 
Pierrepont,  a  Norman  knight  who  accompanied  William 
the  Conqueror.  John  Pierrepont  came  to  America  in 
1630,  settled  in  Roxbury,  :Massachusetts,  and  purchased 


there  a  tract  of  three  hundred  acres.  His  eon. 
Reverend  James  Pierrepont,  one  of  the  chief  founders 
of  Yale  College,  wa-s  the  father  of  Sarah  Edwards,  the 
wife  of  Jonathan  Edwards.  Reverend  James  Pierre- 
pont was  the  great-great-grandfather  of  Edwards  Pierre- 
pont. 


448  HISTORY   OF  THE  BENCH   AND   BAR   OF   NEAV   YORK 

envoy  extraordinary  and  minister  plenipotentiary  to  the  court  of 
Saint  James.  (He  had  previously,  in  1873,  declined  an  offer  of  the 
Russian  mission.)  As  minister  to  England  he  displayed  great  tact  in 
delicate  negotiations  concerning  the  extradition  of  criminals,  and  he 
concluded  with  Earl  Derby  the  trade-mark  treaty. 

Upon  his  return  to  the  United  States,  in  18TS,  he  again  engaged  in 
the  practice  of  the  law.  He  was  associated  with  the  most  eminent 
lawyers  of  the  city  in  many  great  suits.  Up  to  the  time  of  his  retire- 
ment from  the  bar  he  was  connected  with  the  law  firm  of  Stanley, 
Brown  &  Clark. 

He  was  one  of  the  founders  of  the  Association  of  the  Bar  of  the 
City  of  New  York,  delivering  a  strong  address  at  the  first  bar  meeting, 
February  1,  1870. 


LATT,  JONAS  (born  in  Poughkeepsie,  New  York,  June  30, 
1769  ;  died  in  Peru,  Clinton  county,  New  York,  February  22, 
1834),  was  a  son  of  Zephaniah  Piatt  (q.  v.).  Having  been 
admitted  to  the  bar,  he  commenced  the  practice  of  the  law  at 
Whitesboro.  He  held  the  offices  of  assemblyman  (1796),  congressman 
(1796-1801),  state  senator  (1810-13),  member  of  the  council  (1813),  and 
Supreme  Court  justice  (1814-23),  and  after  leaving  the  bench  practiced 
law  first  in  Utica  and  then  in  the  City  of  New  York.  In  1810  he  ran 
for  governor  of  the  state,  but  was  defeated. 


LATT,  ZEPHANIAH  (born  in  Dutchess  county,  New  York, 
in  1740 ;  died  in  Plattsburg,  New  York,  September  12, 1807), 
was  one  of  the  New  York  members  of  the  continental  con- 
gress (1784-86),  one  of  the  early  projectors  of  the  Erie  canal, 
a  judge  of  the  state  Circuit  Court  for  a  long  period,  and  the  founder  of 
Plattsburg.     He  was  a  college  graduate  and  a  good  lawyer. 


LATT,  LEWIS  CANFIELD  (born  in  North  Castle,  West- 
chester county.  New  York,  March  13,  1818),  was  the  son 
of  Benoni  and  Elizabeth  Piatt,  both  descended  from  old  and 
respected  families  identified  with  the  early  history  of  West- 
chester county.  Reared  upon  a  farm,  young  Lewis  attended  the  academy 
at  Bedford  village  and  later  entered  Union  College,  graduating  in  the 
class  of  1841.  He  read  law  with  Samuel  E.  Lyon,  of  White  Plains,  and 
was  admitted  to  the  bar  in  that  village  in  1843.  He  at  once  opened  an 
office  in  White  Plains,  and  soon  took  a  position  in  the  first  rank  of  the 
county  bar.  In  1846  he  was  elected  supervisor  of  the  town,  and  in  1847 
surrogate  of  the  County  of  Westchester,  holding  the  office  until  1855. 


IIISTOUY    <IK     I'lIK    HKNCII    AN 


•1  I'J 


He  was  the  lirsl  siuroiiatc  elected  in  I  lie  coniity,  llie  olliee  liaviii^^  Ix-eii 
previously  an  appointive  position.  Dniini;-  the  last  yeai-  of  his  teiin  as 
sniTo^att^  he  was  a  eandichite  lor  county  clerk  on  the  fusion  ticket,  hut, 
the  county  being- at  the  time  a  strong^iohl  of  "  know-not hin^,nsiii;'  he 
was  defeated.  Durin*,^  the  forty  odd  years  he  i)racticed  law  in  White 
Plains  Mr.  Piatt  transacted  a  great  volume  of  l)usiness.  pariiciilaily  in 


/^  ri^ott: 


matters  connected  with  real  estate  and  surrogate  practice.  Unflagging 
in  industry,  he  was  every  working  day  early  and  late  in  his  office  or  in 
the  courts,  continuing  this  close  application  up  to  the  very  day  of  his 
last  illness.  When  his  son,  afterward  district-attorney,  became  of  age, 
he  was  made  a  partner,  and  the  iirm  of  L.  C.  &  W.  P.  Piatt  ranked 
among  the  highest  at  the  bar. 


450  HISTORY   OF   THE   BEXCH   A>^D   BAR   OF   NEW   YORK 

In  his  political  affiliations  ^Ir.  Piatt  was  in  early  life  a  wliiir. 
Following  the  leaders  of  the  old  whig  organization  into  the  new 
republican  party,  he  was  a  republican  on  the  issues  of  the  civil  war. 
Disagreeing  with  "  radical "  policy  after  the  war,  he  became  a  "  liberal," 
and  supported  Greeley  for  the  presidency  in  1872.  Democratic  and 
liberal  leaders  urged  upon  him  the  nomination  for  congress,  believing 
he  could  redeem  the  district  from  the  republicans,  but  he  declined  to 
make  the  fight.  He  was  ever  afterward  a  thorough -going  democrat. 
For  nine  successive  years  from  1883  he  was  a  member  of  the  board  of 
supervisors,  being  for  a  number  of  years  chairman  of  the  judiciary 
committee  of  that  body. 

Mr.  Piatt's  religions  connections  were  with  the  presbyterian  church, 
of  which  he  was  a  member  and  regular  attendant.  He  was  also  one  of 
the  oldest  members  of  White  Plains  Lodge  F.  &  A.  M.,  having  joined 
May  15,  1859. 

During  his  first  term  as  surrogate  Mr.  Piatt  married  Miss  Laura 
Popham,  of  Scarsdale,  Westchester  county,  who,  with  eight  children, 
five  daughters  and  three  sons,  survived  him. 


:w^|OMEROY,  JOHN  NORTON  (born  in  Rochester,  New  York, 
cvS^JO  April  12,  1828  ;  died  in  San  Francisco,  California,  February 
^^^1^  If),  1885),  was  a  graduate  of  Hamilton  College  in  the  class  of 
—  1847  and  was  admitted  to  the  bar  in  1851.    lie  practiced  with 

success  in  Rochester  for  a  number  of  years,  and  coming  to  New  York 
City  in  1864  became  a  lecturer  on  law  in  the  College  of  the  City  of 
New  York  and  dean  of  the  legal  faculty.  From  1869  to  1878  he  again 
was  an  active  practitioner  at  the  bar  of  Rochester.  In  the  latter  year 
he  resumed  the  congenial  work  of  legal  education,  accepting  the  chair 
of  law  in  the  University  of  California,  and  he  continued  in  that  posi- 
tion until  his  death. 

Professor  Pomeroy  was  one  of  the  beot  legal  scholars  of  his  gen- 
eration. His  writings  include  "  An  Introduction  to  Municipal  Law  " 
(1865),  "An  Introduction  to  the  Constitutional  Law  of  the  United 
States  "  (1868),  "  Remedies  and  Remedial  Rights,  According  to  the  Re- 
formed American  Procedure"  (1^76),  "A  Treatise  on  the  Specific  Per- 
formance of  Contract"  (1879),  "A  Treatise  on  Equity  Jurisprudence" 
(1883),  and  "A  Treatise  on  Riparian  Rights"  (1884).  He  wrote  con- 
siderably for  periodicals  on  legal  and  social  science  subjects,  and  pub- 
lished new  and  annotated  editions  of  Sedgwick's  "  Statutory  and  Con- 
stitutional Law"  and  Abbott's  "Criminal  Law." 

During  the  animated  contest  in  the  New  York  legislature  over  the 
proposed  civil  code,  a  pamphlet  written  by  Professor  Pomeroy  upon 
tlie  workings  of  a  similar  code  in  California  was  circulated  by  the  Bar 
Association  and  it  proved  an  important  factor  in  compassing  the  defeat 
of  the  code. 


IIISTOKV  (»i'   rill';  m:N(ii   am*  hai:  or    m:\v   voi;k  4fil 

ORTRR,  JOirX  K.  (honi  in  Wiih-ifonl,  Sarafo.i::!  county,  N»*\v 
Y()ik..l:inii:iry  12,  ISli);  dwd  in  S;irat()<^^a,  April  11,  ls;)2),  was 
(he  son  of  Dr.  Elijah  I*orlor,a  nativ'(M)f  Norwicli.Connccficiit, 
who  removed  to  Wnnont  and  accumulated"  a  considerable 
foi'tune.  The  son  received  a  classical  education,  beinj;  ^n-aduated  from 
Tnion  Colley-e  in  1837.  He  studied  law  in  tlie  ofliceof  ,Iud<fe  Nicholas 
H.  Doe  at  Saratoga,  was  admitted  to  the  bar  at  the  a<i:e  of  twenty-one, 
and  immediately  afterward  entei-ed  into  partnerslui)  with  Judge  Doe. 
II(  soon  became  one  of  the  leading  lawyers  of  that  part  of  the  state, 
being  associated  in  neai'ly  all  the  important  cases  arising  in  Saratoga 
and  the  neighboring  counties.  He  devoted  himself  strictly  to  his  pro- 
fession, and  although  as  a  young  man  he  took  some  interest  in  politics, 
— attending  the  whig  national  convention  of  1S44  as  a  delegate — he 
refused  all  oilers  of  political  office.  He  served,  however,  in  the  state 
constitutional  convention  of  18-b!,and,  notwithstanding  his  youth,  was 
one  of  the  prominent  members  of  that  famous  body. 

In  1848  he  removed  to  Albany  and  formed  an  association  with 
Deodatus  Wright,  then  recorder  of  the  city.  Soon  afterward  he  joined 
Nicholas  Hill  and  Peter  Cagger  as  junior  partner  in  the  firm  of  Hill, 
Cagger  &  Porter.  This  iirm,  celebrated  in  the  legal  annals  of  the  state, 
was  constantly  occupied  with  suits  of  the  greatest  importance.  Mr. 
Porter  for  several  years  confined  himself  to  the  trial  of  cases  at  nisi 
prius  and  elsewhere,  and  to  the  argument  of  appeals  at  general  term,  but 
npon  the  death  of  Mr.  Hill,  in  1859,  he  succeeded  him  in  the  conduct 
of  the  Court  of  Appeals  cases.  In  conjunction  with  Charles  O'Conor 
he  succeeded  over  William  M.  Evarts  and  ex-Judge  Edmonds  in  the 
Parish  will  case.  In  1863,  in  association  with  William  Curtis  Noyes, 
he  siiccessfully  sustained  the  constitutionality  of  the  legal  tender  act 
of  1862.  His  argument  in  this  suit  is  published  in  full  in  "Great 
Speeches  of  Great  Lawyers."  He  defended  Horace  Greeley  in  the  libel 
suit  brought  by  De  Witt  C.  Littlejohn,  speaker  of  the  assembly,  sway- 
ing the  jury  against  an  adverse  charge  by  the  judge. 

In  1864  he  w^as  appointed  to  the  bench  of  the  Court  of  Appeals  to 
fill  a  vacancy,  and  at  the  ensuing  election  he  was  chosen  for  a  full  term. 
During  the  four  years  of  his  service  he  delivered  many  judicial  opin- 
ions of  great  weight  and  authority.  He  resigned  in  1868  and  removed 
to  New  York,  where  he  organized  the  law  firm  of  Porter,  Lowrey,  Soren 
&  Stone. 

Judge  Porter's  professional  career  at  the  metropolitan  bar  was  in 
every  way  highly  distinguished.  Among  the  clients  of  his  firm  were 
the  Western  Union  Telegraph  Company,  the  Central  Pacific  Company, 
and  the  Gilbert  Elevated  Railway  Company  and  its  successor,  the  Met- 
ropolitan Elevated  Railway  Company.  He  took  the  leading  part  in 
the  long  controversy  which  led  to  the  absorption  of  the  Atlantic  and 
Pacific  Telegraph  Company  by  the  Western  Union.  He  was  associated 
with  William  M.  Evarts  as  counsel  for  Henry  Ward  Beecher  in  the 


452  HISTORY    OF   THE   BEXCH   AND   BAR   OF   XEW    YORK 

Tilton  suit.     In  1877  lie  obtained  decisions  by  the  Court  of  Appeals 
affirming  the  constitutionality  of  the  rapid  transit  act  of  1875. 

His  last  professional  appearance  in  the  courts  was  as  prosecutor  of 
Guiteau  for  the  assassination  of  President  Garfield.  He  was  employed 
by  President  Arthur  and  his  cabinet  in  this  capacity  to  assist  District- 
Attorney  Corkhill. 


HOTTER,  CLARKSON"  NOTT  (born  in  Schenectady,  New 
York,  April  25,  1824 ;  died  in  New  York  City,  January  23, 
1882),  was  the  eldest  son  of  Bishop  Alonzo  Potter.  He  was 
graduated  from  Union  College  in  1842,  was  for  a  time  a 
surveyor  in  Wisconsin,  studied  law  and  was  admitted  in  that  state, 
and  returned  to  New  York  in  1848.  He  rose  to  prominence  and 
frequently  argued  leading  causes  before  the  Supreme  Court  of  the 
United  States.  In  1869  he  appeared  before  that  court  in  connection 
with  the  coin  contract  and  legal  tender  cases,  and  his  views  were 
sustained.  In  1871  the  Supreme  Court,  desiring  to  rehear  the  legal 
tender  question,  directed  a  special  argument  and  selected  the  attorney- 
general  to  support  and  Mr.  Potter  to  oppose  the  law. 

The  last  ten  years  of  his  life  Mr.  Potter  practiced  exclusively  before 
the  Court  of  Appeals  and  the  United  States  courts.  Entering  politics 
in  1868,  he  was  elected  to  the  41st,  42d,  43d  and  45th  congresses.  At 
the  time  of  his  death  he  was  president  of  the  National  Bar  Association. 


OTTER,  PLATT  (born  in  Galway,  Saratoga  county,  New 
York,  April  6,  1800  ;  died  in  Schenectady,  New  York,  August 
12,  1891),  was  graduated  from  Schenectady  College  in  1820, 
afterward  studied  with  Alonzo  C.  Paige,  of  Schenectady,  and 
was  admitted  to  the  bar  in  1824.  He  practiced  law  at  Menorville  until 
1833,  when  he  removed  to  Schenectady  to  form  a  partnership  with  his 
former  instructor,  Mr.  Paige.  In  1839  he  was  elected  district-attorney 
of  Schenectady  county,  holding  the  office  six  years.  He  was  at  the 
same  time  master  and  examiner  in  chancery,  being  appointed  in  1828, 
and  exercising  the  functions  of  these  offices  until  the  discontinuance  of 
the  Court  of  Chancery,  in  1848.  In  1857  he  was  elected  judge  of  the 
Supreme  Court  for  the  4th  district,  and  again  in  1865,  without  opposi- 
tion, sitting  during  the  latter  term  as  jutlge  of  the  Court  of  Appeals. 
In  1870  he  was  appointed  associate-justice  of  the  general  tenn  for  the 
3d  department.  During  the  same  year  he  caused  the  arrest  of  Henry 
Ray,  an  assemblyman,  for  refusing  to  answer  to  a  subpwna,  and  was 
brought  before  the  bar  of  the  house  accused  of  "high  breach  of 
privilege."  His  defence — a  complete  vindication — was  issued  by  the 
bar  in  pamphlet  form,  and  won  congratulations  from  eminent  jurists 
throughout  the  country.  He  was  also,  in  1870,  chosen  president  of  tlie 
state  judicial  convention  in  Rochester. 


IIISIOKY    OK    THK    llKNCll    AND    HAK    OF   JVKW    YOltK 


■i:.:{ 


He  published  "  Potter's  Dwarries,"  a  general  treatise  on  the  fon- 
stnu'tion  of  statutes,  "  Equity  Jurisprudence,"  and  "Potter  on  Cor- 
l)orations"  (2  vols.,  1879).  In  ISsO  he  i)resented  to  the  New  York  His- 
torical Society  six  volumes  of  the  "  State  Trials  of  Mu^^land,"  al  tlie 
time  of  their  issue  valued  at  £000. 


RATT,  CALVIN  EDWARD  Oiorn  January  23, 1828,  in  Prince- 
ton, Worcester  county,  Massachusetts ;  died  at  his  Buzzard 
Bay  home,  Rochester,  Massachusetts,  August  4,  1896),  was 
a  son  of  Edward  Avers  Pratt  and  Mary  Anne  Stratton.     His 
grandfather  on  his  father's  side  was  Captain  Joseph  Pratt,  of  Shi-ews- 


454  HISTORY   OF  THE  BENCH   AND  BAR  OF  NEW   YORK 

bury.  Massachusetts,  and  on  his  mother's  was  Deacon  Samuel  Stratton, 
of  Princeton,  Massachusetts,  a  soldier  in  the  war  of  1812.  After 
leaving  the  common  schools  of  his  native  town  he  attended  Wil bra- 
ham  Academy,  and  later  the  Manual  Labor  Academy  at  Worcester, 
Massachusetts,  where  he  fitted  for  college.  Later  he  read  law  with 
Honorable  Henry  Chapman,  of  Worcester,  Massachusetts,  and  was  ad- 
mitted to  the  bar  in  May,  1852.  He  entered  at  once  upon  the  practice 
of  law  in  Worcester,  where  he  continued  until  1859,  when  he  came  to 
New  York  City.  When  the  civil  war  broke  out  Mr.  Pratt  raised  the 
31st  New  York  volunteers,  and  went  to  the  front  as  colonel.  Septem- 
ber 15,  1862,  he  was  appointed  brigadier-general  of  volunteers.  He 
was  engaged  in  the  battles  of  Bull  Run,  West  Point,  Virginia,  Gaines' 
Mills  (where  he  was  severely  wounded  in  the  head).  South  Mountain, 
Antietam  and  Fredericksburg,  and  in  several  skirmishes. 

In  1865  he  was  made  collector  of  internal  revenue,  and  in  1870  he 
was  elected  judge  of  the  Supreme  Court  of  New  York  state  from  the  2d 
judicial  district,  which  position  he  continued  to  hold  until  his  death. 


RATT,  BENJAMIN  (born  in  Cohasset,  Massachusetts,  March 
13,  1710  ;  died  January  ."i,  1763),  one  of  the  colonial  chief- 
justices,  was  of  humble  birth  and  was  bred  to  a  mechanical 
trade.  Losing  a  limb  at  an  early  age,  he  devoted  himself  to 
study,  was  graduated  at  Harvard  in  1737  (being  the  lowest  in  his  class), 
and  studied  law  in  Boston  with  Robert  Auchmuty,  an  eminent  British 
barrister,  whose  sister  he  married.  He  became  one  of  the  prominent 
lawyers  of  Boston,  noted  for  his  learning  and  eloquence.  November 
11,  1761,  he  was  commissioned  chief-justice  of  New  York  by  Colden, 
who  at  that  time  was  advocate-general  of  Massachusetts,  and  he  took 
office  in  January,  1762.     He  died  while  on  a  visit  to  England. 

According  to  Judge  Thomas  Jones,  Chief-Justice  Pratt,  during  his 
brief  service  on  the  New  York  supreme  bench,  was  "  insulted,  abused 
and  lampooned  through  the  artful  insinuations  and  cunning,  sly, 
dai'k  designs  of  the  republican  faction  of  which  the  two  Smiths,  senior 
and  junior,  William  Livingston,  John  Morin  Scott,  Robert  R.  Living- 
ston, Peter  Van  Brugh  Livingston,  Philip  Livingston  and  Thomas 
Smith  were  the  princii)a]  leaders.  He  was  opposed  in  every  judicial 
act  he  did,  plagued  and  harassed  by  the  Smiths,  Livingstons  and 
Scott,  the  then  leading  gentlemen  of  the  bar." 


^RUYN,  JOHN  VAN  SCHAICK  LANSING  (born  in  Albany, 
New  York,  June  22,  1811;  died  in  Clifton  Springs,  New 
York,  November  21, 1877),  was  graduated  at  Albany  Academy 
in  1826,  and  after  studying  law  under  the  direction  of  James 
King  was  admitted  to  the  bar  (1832).  As  a  young  lawyer  he  attained 
peculiar  prominence,  and  the  annals  of  the  state  bar  afford  few  in- 


IIISTdKY    OI'    'llli:    liKNCII     AM)    IIAU    (»F    NKV.'     Vdl.'K  JTi.') 

stances  of  siniilar  rapid  adNaiicc.  One  ol'  his  liist  j)i()f('ssi()iiai  <'ii;,^a^''<'- 
nit'iits  was  us  an  attonu'v  in  the  .lames  will  case,  a  very  notalih*  suit. 
At  th(»  aii'e  of  twenty-four  ho  was  counsel  for  the  Mohawk  tV  Hudson 
Hailioad,  and  one  of  its  directors,  and  "in  ]H')'A,  when  the  railroads  be- 
tween Albany  and  Butl'alo  were  united,  forndn^^  thepi-esent  New  York 
Central,  he  conducted  the  proceedin<i:s  and  drew  up  the  consolidation 
aii;r«>enient,  in  some  respects  the  most  important  business  instrument 
that  was  ever  executed  in  tiie  State  of  New  York.  lie  was  associated 
in  the  Hudson  river  brid<i-e  case,  iinally  arguing  it  alone,  was  the  sole 
trustee  of  the  estate  of  Ilarmanus  Bleecker,  and  was  the  financial 
otiicer  of  tlio  Sault  Ste.  Marie  canal,  which  lie  carried  tlirough  many 
difficulties."' '  ]\Ir.  Pruyn  was  one  of  the  principal  citizens  of  Albany, 
and  filled  positions  of  high  honor.  As  a  cai)itol  commissioner,  lie  laid 
the  corner-stone  of  the  new  state  capitol  in  1869.  For  thirty-three 
years  he  was  regent  of  the  State  University,  and  for  fifteen  years  its 
chancellor.  The  collections  of  the  State  Museum  of  Natural  History 
and  the  State  Library  were  largely  enriched  by  his  efforts.  He  was  a 
trustee  of  the  state  board  of  charities,  the  state  survey  and  the  Albany 
Institute,  a  member  of  the  association  foi"  the  codification  of  the  law  of 
nations,  and.  Avas  connected  with  historical  and  other  societies.  He  was 
elected  a  state  senator  in  1861,  and  served  in  congress  from  1863  to  1869. 


RUYN,  ROBERT  HEWSON  (born  in  Albany,  New  York, 
February  4,  1815  ;  died  there,  F'ebruary  26,  1882),  a  cousin  of 
the  preceding,  was  graduated  at  Rutgers  College  in  1833, 
and  admitted  to  the  bar  in  1835  after  studying  with  Abraham 
Van  Vecliten.  He  held  local  and  state  offices  ;  was  corporation  counsel 
of  Albany,  adjutant-general  (1855),  and  member  of  the  assembly  from 
1848  to  1850,  and  again  in  1854,  in  which  latter  year  he  was  speaker. 
He  was  sent  by  President  Lincoln  in  1861  as  minister  to  Japan,  and  in 
that  office  he  assumed  responsibility  for  inaugurating  naval  operations 
against  the  daimio  of  Chosu,  which,  with  the  ultimate  co-operation  of 
Great  Britain,  France  and  Holland,  had  results  of  much  importance 
for  the  promotion  of  commercial  intercourse ;  and  altogether  the 
United  States  is  greatly  indebted  to  Minister  Pruyn  for  the  increasing 
favor  extended  to  American  trade  in  Japan.  Returning  to  this  coun- 
try he  devoted  himself  chiefly  to  financial  interests,  being  ]iresident  of 
the  National  Commercial  Bank  of  Albany  at  the  time  of  his  death. 


TRSER,  GEORGE  H.  (born  in  England  in  1810  ;  died  in  New 

York  City,  June  21,  1889),  came  to  this  country  at  eighteen. 

lie  studied  law,  and  was  admitted  to  the  bar  in  New  Y'ork 

City  while  employed  as  a  drug  clerk.     He  was  for  forty  years 

a  member  of  the  Tammany  Society,  successively  secretary  and  vice- 

•  Appleton's  "  Cyclopedia  of  American  Biography." 


456  HISTORY    OF  THE   BEXCH   AND   BAK   OF   NEW   YORK 

president  of  the  fire  department,  in  1850  commissioner  of  taxes,  and  in 
1856  corporation  attorney.  He  framed  the  bill  appointing  the  state 
commission  of  immigration.  In  1809,  as  attorney  for  the  Mutual  Life 
Insurance  Company,  he  defeated  the  conspiracy,  involving  a  Xew 
York  judge,  to  throw  the  company  into  the  hands  of  a  receiver.  He 
was  president  of  the  Daily  JVews  Publishing  Company  at  the  time  of 
his  death. 


.IDCLIFF,  JACOB,  was  the  eldest  son  of  William  Radcliff,  a 
captain  of  militia  at  the  be-     r- — z"^ ' 


ginning  of  the  Revolution, 
who  rose  to  the  rank  of 
brigadier-general.  Jacob  studied  law, 
and  began  practice  at  Poughkeepsie. 
He  was  eminently  successful,  and 
while-still  a  young  man  was  raised  to 
the  bench  of  the  Supreme  Court. 
Thereupon  he  took  up  his  residence 
in  New  York  City,  but  he  eventually 
resigned  from  the  bench  and  resumed 
the  practice  of  law.  In  1810  he  was 
appointed  mayor,  holding  the  position 
one  year ;  and  again  in  1815,  1816  and 
1817  he  was  mayor  of  the  city.     The 


population    of    New    York    reached        ^  ^^p 

100,000  during  his  mayoralty.  ^^^^^^^^^"-Z^^^e^^ 


APALLO,  CHARLES  A.  (bom  in  New  York  City,  September 
15,  1823  ;  died  December  28,  1887),  the  eminent  lawj^er  and 
late  associate-justice  of  the  Court  of  Appeals  of  the  State 
of  New  York,  was  the  son  of  Anthony  Rapallo  and  Elizabeth 
Gould.  The  latter  was  sister  of  Hannah  F.  Gould,  the  poetess,  and 
aunt  through  a  brother  and  sister  to  Benjamin  A.  Gould,  the  noted 
astronomei,  and  to  Chief-Justice  Fuller  of  the  United  States  Supreme 
Court.  The  father  of  the  Gould  family,  Benjamin  Gould,  was  engaged 
in  the  battle  of  Lexington,  Avas  an  officer  in  the  continental  army,  and 
was  elected  from  Massachusetts  to  the  first  continental  congress  which 
signed  originally  the  declaration  of  independence. 

The  elder  Rapallo,  a  native  of  Italy,  near  Genoa,  coming  to  this 
country  early  in  life  and  settling  in  the  City  of  New  York,  was  a 
superior  linguist  as  well  as  lawyer,  and  in  addition  to  his  i)ractice 
often  acted  as  a  translator.  He  located  in  1818  at  16  Vesey  street, 
thence,  as  his  practice  grew,  successively  on  Beekman,  Church  and 


IK   I  UK  iti;N(  II   AM)  iiAi:  ok  m;\v   ^okk 


-ir.7 


Nassau  stivcfs,  and  in  ISI:{  at  No.  4  (now  No.  lli  Wall  sdvt.  I'\.i-a 
iminbcr  ol"  years  lie  and  .John  Anlhon  had  ollices  to^^'llier.  lie  pfi- 
sonally  diit'clcd  (lie  early  education  of  his  son,  ('harle.s,  liein<<  his  pif 
ceptor  in  classical  studies  and  the  modern  lan,<;iia<i:es,  Italian,  Spanish 
and  French,  in  which  the  youth  .si)oke  witli  the  same  lluency  as  in 
English. 

At  tlie  early  age  of  fourteen  years,  by  constant  attendance  at  his 
father's  oflice  and  si)ecial  tuition,  his  legal  studies  had  become  fairly 
inaugurated.      At   the  age  of  twenty-one,  without   having  attended 


CHARLES    A.    nAPALLO. 


school  or  college,  he  was  admitted  to  the  New  York  bar.  Remaining 
for  a  short  time  in  the  office  of  Jonathan  Miller,  counsel  for  the  Aster 
estate,  he  in  1845,  with  Joseph  Blunt,  formed  the  partnership  of  Blunt 
&  Rapallo.  The  firm  were  the  attorneys  of  the  Mutual  Life  Insurance 
Company  during  the  first  years  of  the  organization  of  that  company. 
In  1848  he  formed  the  principal  professional  association  of  his  life, 
with  Horace  Clark,  at  No.  05  Wall  street.  A  high  class  of  practice  at 
once  came  to  the  firm.  Among  the  early  and  notable  cases  in  which 
Mr.  Rapallo  personally  appeared  were  :  Donnelly  vs.  Corbett  (7N.  Y.), 


458  HISTORY   OF  THE  BENCH  AND   BAR    OF   NEW   YORK 

involving  the  question  of  the  validity  of  an  insolvent  discharge  ob- 
tained in  South  Carolina  as  against  a  creditor  who  was  a  resident  of 
New  York,  but  who  had  obtained  judgment  against  his  debtor  in  the 
courts  of  South  Carolina  and  there  imprisoned  him.  Mr.  Rapallo 
carried  the  case  to  the  Court  of  Appeals  and  secured  a  reversal  of  the 
judgment  of  the  Superior  Court.  In  the  case  of  the  Josephine,  run- 
ning between  New  York  and  Monmouth  county,  New  Jersey,  attached 
under  warrant  of  state  attachment  law,  Mr.  Rapallo  produced  a  reversal 
of  the  judgment  of  general  term  on  constitutional  grounds.  For  the 
British  Commercial  Life  Insurance  Company,  he  overthrew  the  action 
of  the  commissioners  of  taxes  and  assessments,  who  had  assessed  the 
company  on  $50,000  United  States  bonds  and  $50,000  Buffalo  city 
bonds,  the  United  States  bonds  being  held  to  be  exempt.  This  was  the 
first  case  in  which  the  point  had  been  taken.  Gillespie  vs.  Torrence, 
relating  to  commercial  paper  ;  Hasbrouck  ^)S.  Hasbrouck,  growing  out 
of  the  administration  of  a  will ;  Hayes  vs.  Heyer,  involving  the  position 
of  a  special  partner  ;  Hoxie  vs.  Allen,  brought  by  Joseph  Hoxie  to  re- 
cover for  services  from  a  steamship  line,  are  cases  in  which  Mr.  Rapallo 
made  the  arguments  in  the  highest  court. 

Mr.  Rapallo,  acting  for  his  firm  as  attorney  for  Cornelius  Vander- 
bilt,  made  the  arguments  in  the  cases  of  Quimby  vs.  Yanderbilt  and 
"Williams  vs.  Yanderbilt,  actions  brought  to  hold  the  commodore  liable 
for  deliquencies  of  a  co-operating  company.  He  also  argued  for  Mr. 
Yanderbilt  in  the  Court  of  Appeals,  in  connection  wdth  Charles 
O'Conor,  the  case  of  the  New  York  &  New  Haven  Railroad  Company 
vs.  Scuyler,  growing  out  of  the  great  Scuyler  frauds,  which  occupied 
the  attention  of  the  court  for  many  years  (34  N.  Y.). 

In  1867,  Mr.  Clark  retiring  from  practice.  Judge  Rapallo  formed  a 
partnership  with  James  C.  Spencer,  under  the  firm  name  of  Rapallo  & 
Spencer.  In  the  autumn  of  the  same  year  the  great  Erie  controversy 
commenced,  and  during  the  early  months  of  18(58  Mr.  Rapallo  was 
engaged  in  some  of  the  most  complicated  and  extensive  legal  pro- 
ceedings that  have  been  known  in  the  history  of  our  courts.  Mr. 
Rapallo  had  the  general  direction  of  this  litigation,  although 
several  distinguished  counsel  were  associated  with  him.  His  pro- 
fessional life  was  occupied  almost  exclusively  with  business  in  the 
civil  courts,  and  though  his  practice  was  a  varied  one,  he  was  em- 
ployed mainly  in  matters  relating  to  estates,  trusts,  corporations, 
testamentary  and  commercial  law,  in  all  of  which  he  gained  an  experi- 
ence that  fitted  him  for  the  position  he  was  soon  called  upon  to  fill. 

He  had  held  aloof  from  office,  though  as  a  voter  he  was  registered 
with  the  democrats.  In  1870  the  election  of  a  chief-judge  and  six 
associate-judges  of  the  Court  of  Appeals  took  place  under  the  amended 
constitution  providing  for  a  court  of  seven  prominent  judges,  and 
requiring  that  each  elector  should  vote  only  for  four  associate- judges, 
that  giving  both  parties  a   representative.      Mr.   Rapallo,  who  was 


lllsroKY    OK   TIIK    HKNOII    AND    HAli   OK    NKW    VOKK  4.")1) 

noniinat<Ml  by  the  (Icinocrats  as  oncol"  the  four  associalf-jiidifcM,  was 
elected,  witli  llie  otlier  three,  by  an  avera^^e  majority  of  S.""),()l):{  votes. 
In  this  hi^h  position  tiie  judicial  faculty  of . I ud<:;e  RapaUo  was  at  once 
brouuiit  into  pioniineiice.  His  h'arnin^and  acuteness  aj)|)eai-  from  the 
i-ecord  of  leadini^  opinions  in  which  he  lias  summed  up  the  i-easons  of 
the  court  for  reversing  the  judgment  of  lower  tribunals.  l*r(Muinent 
amoui;-  these  cases  are  :  Manice  rs.  Manice  (^43  N.  Y.  R.),  involving 
almost  every  question  that  can  arise  under  the  revised  statutes  in  rela- 
tion to  the  susi)ensi()n  of  the  power  of  alienation  of  real  estate  ;  Clark 
^9.  Sheehan,  a  question  of  usury  ;  Harris  «.v.  Frink,  involving  title  to 
crops  under  i)ar()le  contract  ;  Ilemman  ?v9.  Heard  ;  Reed  rs.  Gannon  ; 
Menagh  r.v.  Whitvvell ;  Baker  /'-v.  Drake  ;  Filton  ns.  Backer  ;  Wood- 
gate  vs.  Fleet ;  McDonaUl  vs.  Mallory  ;  People  vs.  Scuyler  ;  Young  e*. 
Young,  and  many  others,  contained  in  fifty-seven  volumes  of  reports, 
the  opinions  embracing  a  wide  range  of  legal  princii)les  and  character- 
ized by  largeness  and  breadth  of  judicial  view. 

In  1884  Judge  Rai)allo  was  re-elected,  for  the  term  of  fourteen 
years,  associate-judge,  by  substantially  the  unanimous  vote  of  both 
parties,  having  been  in  the  meantime  (1880)  the  choice  of  his  own 
party  at  the  State  convention  for  the  chief-judgeship.  He  continued 
his  judicial  labors,  however,  scarcely  three  years  from  his  re-election, 
succumbing  to  fatal  illness  December  28,  1887,  and  leaving  but  a  single 
survivor  (Judge  Charles  Andrews)  of  the  original  seven  judges  elected 
to  constitute  the  Court  of  Appeals  in  1870. 

The  tributes  to  his  memory  Avere  sincere  and  universal.  Judge 
Charles  Andrews,  who  jirepared  and  read  the  memorial  before  the 
Court  of  xVppeals,  which  adjourned  immediately  thereafter,  said  in 
part : 

111  the  combination  of  qiuditics  which  fit  a  man  to  be  a  judge.  Judge  RapaUo 
had  few  if  any  superioi-s.  He  possessed  intellectual  gifts  of  a  liigh  order,  absolute 
integrity  of  purpose,  a  calm  and  dispassionate  temper,  great  good  sense,  a  solid 
judgment,  and  these,  united  with  adequate  learning  and  power  of  philosophical 
analysis,  constituted  him,  as  I  think,  one  of  the  first  judges  of  our  time. 

January  20,  1888,  after  the  opening  of  the  court,  the  Honorable 
Amasa  J.  Parker  presented  resolutions  adopted  at  a  meeting  of  the 
Albany  bar,  with  eulogistic  remarks,  which  by  order  of  court  were 
entered  on  the  minutes.  A  minute  and  resolutions  of  the  Kings 
county  bar  were  also  presented  by  William  P.  Davenport,  and  entered 
upon  the  minutes.  February  28,  1888,  Honorable  William  Allen 
Butler,  on  behalf  of  the  New  Y'ork  State  Bar  Association,  presented  a 
tribute  and  resolutions,  which  were  ordered  entered  on  the  minutes  of 
the  court.  A  memorial  prepared  by  Stephen  P.  Nash  in  accordance 
with  a  resolution  of  the  Association  of  the  Bar  of  the  City  of  New 
York  at  a  stated  meeting,  held  March  13,  1888,  was  also  presented  to 
the  court,  and  became  a  part  of  the  minutes  of  the  memorial  proceed- 


460  HISTORY   OF  THE   BENCH   AND   BAR   OF  NEW   YORK 

ings  in  reference  to  the  death  of  Judge  Rapallo.    A  paragraph  in  this 
memoral  says  : 

From  the  time  he  took  his  seat  in  the  Court  of  Appeals  in  July,  1870,  till  his 
last  illness,  some  seventeen  years,  his  life  was  one  of  continuous  and  faithful  devo- 
tion to  the  duties  of  his  office.  Elevated  to  a  seat  in  the  liighest  court  of  the  state, 
and  this  an  appellate  court,  sitting  only  in  i-evicw  of  decisions  of  subordinate 
tribunals,  without  having  had  any  previous  judicial  experience,  his  immediate 
success  in  disarming  criticism  and  winning  general  confidence  is  proof  that  he  had 
the  mental  endowments,  the  sound  learning  and  integrity  of  character  essential  to 
the  making  of  a  great  judge. 

Judge  Rapallo  married  in  early  life  Helen,  daitghter  of  Bradford 
Sumner,  of  Boston,  Massachusetts.  His  widow,  two  sons  and  four 
daughters  survived  him. 

jEYNOLDS,  JOnk  H.  (born  in  Saratoga  county,  Kew  York, 
in  1819 ;  died  in  Kinderhook,  New  York,  September  24, 
1875),  received  an  academic  education  and  was  admitted  to 
the  bar  in  1843.  He  was  for  a  time  postmaster  at  Albany, 
and  was  a  member  of  congress.  He  was  appointed  to  the  Commission 
of  Appeals  in  1873,  and  as  a  member  of  that  body  he  wrote  some  most 
able,  ingenious  and  striking  opinions,  which  attracted  much  attention 
from  the  bar  of  the  whole  country.  His  associates  on  the  Appeals 
Commission  were  Lott,  Gray,  Earl  and  Dwight. 

His  opinion  in  the  case  of  Appleby  vs.  Astor  Insurance  Company, 
54  New  York  Reports,  253,  may  be  cited  as  a  specimen.  It  is  there 
held  that  upon  an  undisputed  state  of  facts  the  court  may  render  the 
judgment  which  the  law  requires,  without  the  aid  of  a  jurj'.  This  is 
his  terse  statement  of  the  case :  "  I  am  of  the  opinion  that  itpon  the 
undisputed  facts,  under  the  provisions  of  the  policy,  the  plaintiffs  were 
not  entitled  to  recover,  and  that  a  verdict  should  have  been  directed 
for  the  defendant.  The  terms  of  the  contract  between  the  i)arties  must 
control  the  result ;  and  if  unambiguous,  neither  courts  nor  juries  can 
alter  or  modify  its  provisions  or  in  effect  make  a  new  one."  The  posi- 
tion thus  outlined  he  maintains  in  an  able  opinion  in  the  case  of 
Algur  m.  Gardner,  54  New  York  Reports,  360,  where  he  holds  that  it 
is  error  for  a  judge  to  submit  a  question  to  a  jury  if  there  is  uo 
evidence  to  authorize  any  finding  thereon.  In  Savage  vs.  Allen,  54 
New  York  Reports,  458,  involving  the  question  how  far  equitable 
defence  can  be  used  as  a  basis  for  an  injunction  suit,  he  says  :  "  The 
proposition  that  a  separate  action  may,  under  our  present  system,  be 
maintained  to  restrain  by  injunction  the  proceedings  in  another  suit, 
in  the  same  or  in  another  court,  between  the  same  i)arties,  where  tlie 
relief  sought  in  the  later  suit  may  be  obtained  by  a  proper  defence  to 
the  former  one,  has  long  since  been  exploded,  or,  if  not,  should  be 
without  dehiy."  He  was  especially  strong  in  dealing  with  questions  of 
procedure  and  in  construing  the  code  of  procedure. 


HISTORY  oi'  TiiK  in:N('ii   and  kai:  <>i'  ni:\v   v<»i:k  Hil 

lEYNOLDS,  MAR(n:s  T.  0>uni  in  Florida,  Moiilnomny 
county.  New  York,  IK'ccinber  22,  1778;  died  in  All):iny 
January  l."5,  IS(!4),  was  educated  at  (Janajohai'ie  Academy 
and  at  Union  College,  being-  graduated  from  the  lattei'  in- 
stitution in  ISOS  second  in  his  class.  He  immediately  commenced 
tlie  study  of  the  law  in  the  ollice  of  Attorney-General  M.  B.  llildreth, 
at  Johnstown,  New  York,  and  lie  was  called  to  the  bar  in  is  11,  begin- 
ning j)ractice  in  Johnstown,  where  he  soon  ranked  as  one  of  the 
best  lawyers,  although  the  Johnstown  bar  at  that  period  was  adorned 
by  many  brilliant  and  distinguished  men.  In  1S28  he  removed  to 
Albany.  There  he  became  one  of  the  chief  practitioners  in  the  Supreme 
Court  and  Court  for  the  Correction  of  Errors,  being  for  thirty-five 
years  counsel  in  the  most  important  suirs  adjudicated  in  those  tri- 
bunals. He  was  equally  ett'ective  in  suits  involving  close  and  passion- 
less reasoning,  like  that  of  Mabee  vs.  Peck,  which  was  confined  to 
abstract  questions  of  law,  and  in  cases  calling  for  more  animated 
qualities,  like  the  celebrated  Lamprey  murder  case.  In  his  latter  years 
he  conducted  his  causes  sitting,  having  had  one  of  his  legs  amputated 
in  consequence  of  injuries  sustained  in  a  fall. 

He  never  sought  or  held  i)ublic  office,  and  on  one  occasion  mani- 
fested in  a  peremptory  manner  his  distaste  for  political  preferment. 
In  1881  a  delegation  waited  upon  him  to  tender  him  the  nomination 
for  congress  for  the  Albany  district,  but  he  declined  it. 


E^^^  I ICH ARDSON,  JOSEPH  L.  (born  in  Tawneytown.  Maryland, 
r^^^^  June  5,  1777;  died  in  Auburn,  New  York,  April  15,  1853), 
j^|||j^^  removed  to  Cayuga  county.  New  York,  at  an  early  age  and 
settled  in  Aurora,  where  he  read  law  with  AValter  Wood, 
who  subsequently  became  first  judge  of  Cayuga  county.  He  was  ad- 
mitted to  the  bar  in  18U2.  In  1815  he  was  appointed  by  Governor 
Tompkins  district-attorney  for  the  9th  district,  embracing  the  counties 
of  Cayuga,  Cortland,  Chenango,  Madison  and  Onondaga.  He  filled  this 
office  with  great  ability,  distinguishing  himself  speciallj'  by  obtaining 
the  conviction  of  Bishop  for  highway  robbery  in  a  difficult  case.  In 
1818,  upon  the  discontinuance  of  the  old  district  system,  he  became 
prosecuting  attorney  for  Cayuga  county,  continuing  in  that  office  until 
1821.  He  was  appointed  by  Governor  De  AVitt  Clinton  in  1827  first 
judge  of  the  Cayuga  Court  of  Common  Pleas,  and  he  served  on  that 
bench  for  nineteen  years.  His  official  career,  as  public  prosecutor  and 
judge,  covered  a  period  of  thirty-one  years  and  was  characterized 
throughout  by  faithful  and  efficient  performance  of  duty. 


462 


HISTORY  OF  THE  BENCH  AND  BAR  OF   NEW  YORK 


IKER,  RICHARD  (born  in  Newtown,  Queens  county,  New 
York,  September  9,  1773 ;  died  in  New  York  City,  Sep- 
tember 26,  1842),  was  the  son  of  Samuel  Riker'  and  Anna 
Lawrence.  Receiving  a  good  preliminary  education  under 
the  tuition  of  Dr.  Witherspoon  at  Nassau  Hall,  New  Jersey,  lie  entered 
the  law  office  of  the  elder  Jones  and  was  admitted  to  the  bar  in  1795. 
He  became  district  attorney  of  New  York  in  1801,  holding  that  office 
continuously  to  1813,  with  the  exception  of  a  single  year  from  Febru- 
ary, ISIO,  to  February,  ISll.  In  1815  he  was  appointed  recorder  of  the 
city.  He  served  as  recorder,  with  one  or  two  short  intermissions,  until 
1838.  He  then  resigned  on  account  of  ill  health,  retiring  to  his  coun- 
try seat  on  the  Hudson  near  the 
present  Seventy  -  fifth  street, 
where  a  few  years  subsequently 
he  died. 

A  recent  writer,  speaking  of 
his  professional  and  personal 
characteristics,  says  : 

He  was  an  excellent  magistrate, 
learned  in  the  criminal  law,  of  wide 
experience,  of  unwearing  patience,  of 
good  nature  and  keen  sympathies. 
....  He  was  a  gentleman  of  the  old 
school — of  the  curled  and  ruffled  Co- 
rinthian order^at  a  period  when  tliere 
was  time  for  dignit3%  deliberation  and 

courtesy Compared  with  Liv- 

ing-ston,  Jones,  Kent  and  Ogden  Hotl'- 
Dian,  his  abilities  were  not  shining, 
and  yet  in  the  provincial  town  in  which 
he  flourished  he  made  a  prominent 
figure,  respected  and  beloved  by  all.-' 

In  1802  Mr.  Riker  acted  as  second  for  De  Witt  Clinton  in  a  duel 
with  Colonel  John  Swartwout.  In  1803  he  had  a  meeting  with  Robert 
Swartwout,  a  brother  of  the  colonel,  and  was  severely  wounded  in  the 
right  leg.  He  was  in  consequence  confined  to  his  house  for  seven 
months.  But  he  was  not  more  conspicuous  for  his  courage  than  for 
his  courtesy  and  engaging  manners.  It  is  related  of 
him  that  Mr.  John  Van  Wyck,  who  bore  Mr.  Swart- 
wout's  challenge,  was  so  favorably  impressed  by  Mr. 
Riker  during  the  interview  that  he  returned  to  his  principal  and  de- 
clined to  serve  as  his  second. 

Mr.  Riker's  political  opponents  sought  to  pro.secute  him  for  the 
offence  of  fighting  a  duel,  but  Hamilton,  who  was  his  intimate  friend 

'  Samuel  Riker  fouglit  in  the  revolutionary  war,  and  Emmet.      He  was  a  member  of  the  state  legislature  in 

his  brother  Andrew  commanded  the  Smatogit  and  the  1784,  and   of   the  8th  and  10  congresses,  in  1803  and 

Yorktoivn  in  the  war  of  1813.  One  of  his  sisters  married  1809,  resjiectively. 

Dr.  Macnevin,  of  New  York, and  another,  Thomas  Addis  »  Irving  Browne,  in  the  Green  Bag,  April,  1896. 


IIISTOKY    OK   TirK    HKNCII    AM)    UAK    OF    NKW    YOKK  4(>:{ 

and  a  ficciiiciit  vis'tor  at  his  house  on  Wall  strecl,  NucccHsfiilly  inter- 
posed in  his  behalf,  llis  early  devotion  to  "  the  code,"  at  a  period 
when  diiellinn'  had  not  given  j)la('e  to  the  code  of  j)rocedure,  wii.s  strik- 
in<;-ly  modi  lied  by  his  subseciiient  words  as  nia<;istrate  in  the  case  of 
Jacob  ]?arker,  indicted  for  sendin*^  a  challen/^e  to  fight  a  duel  (7 
Wheeler  Criminal  Cases,  19).  Tlie  Jury  convicted  the  accused,  and  the 
recorder  in  })assing  sentence  said  :  ''  We  feel  constrained  also  to  pro- 
nounce one  word  of  ivi)r()bation  on  the  direful  practice  of  duelling,  to 
which  the  defendant  himself  assented  in  liis  argument.  It  is  a  practice 
most  abhorrent  to  reason,  to  humanity  and  to  religion,  l^y  it  ntany  of 
onr  best  citizens  have  been  destroyed — many  a  wortliy  fanuly  i-endered 
miserable.  We  ai'e  bound  by  every  sanction  to  lend  our  aid  to  extin- 
guish it." 

He  was  distinguished,  in  connection  with  his  legal  attainments,  for 
his  wit  and  polished  manners  ;  and  his  prominence  in  official  i)Osition 
made  him  the  mark  for  a  satirical  but  pleasant  poem,  entitled  "The 
Recorder,"  by  Ilalleck — one  of  the  "  Croakers  "  series,  published  pre- 
viously to  1828. 

fOBERTSON,  ANTHONY  LISPENARD  (born  in  New  York 
City,  June  8,  18()S  ;  died  there,  December  18,  1868),  after  his 
graduation  from  Columbia  College  in  1825  studied  for  the 
legal  profession  and  in  due  time  was  admitted  to  practice. 
He  promptly  gained  high  standing  in  the  profession  and  for  much  of 
his  life  was  occupied  in  important  judicial  employments,  being  succes- 
sively vice-chancellor  (1840—18),  surrogate  of  New  York  City  (1848),  and 
judge  of  the  Superior  Court  of  the  City  of  New  York  (elected  in  1859 
and  re-elected  in  1864),  of  which  he  became  chief-justice  in  1866.  He 
was  a  prominent  member  of  the  state  constitutional  convention  of  1867. 


OBINSON,  EDMUND  RANDOLPH  (born  in  Philadelphia, 
March  5,  1838  ;  died  in  New  Y'ork  City,  July  24,  1896),  was 
graduated  from  the  University  of  Pennsylvania  in  the  class 
of  1855  and  from  Harvard  in  the  class  of  1856.  He  was  ad- 
mitted to  the  bar,  engaged  in  practice  in  the  City  of  New  York,  and 
from  a  very  early  period  in  his  career  enjoyed  important  and  remu- 
nerative employments.  For  twenty-five  years  he  served  the  Pennsyl- 
vania Railroad  Company  as  counsel.  He  was  one  of  the  committee  of 
those  appointed  to  call  the  meeting  at  which  the  Association  of  the 
Bar  was  organized,  and  was  among  the  most  active  of  the  young  men 
who  took  part  in  the  proceedings  which  resulted  in  the  impeachment 
of  the  corruj^t  judges. 

Mr.  Robinson  was  one  of  the  most  esteemed  members  of  the  New 
York  bar,  highly  respected  by  the  profession  alike  for  his  abilities 
and  his  character. 


464  HISTORY   OF  THE   BENCH   AND   BAR   OF   NEW   YORK 

OBINSON,  HAMILTON  W.  (born  in  Albany,  New  York, 
November  25,  1814  ;  died  in  New  York  City,  April  7,  1S79), 
was  graduated  at  Union  College  in  1832,  studied  law  in  the 
office  of  McCown  and  Van  Buren,  and  upon  his  admission  to 
the  bar  became  a  partner  of  Mr.  \'an  Buren  (" Prince  John").  The 
latter,  when  appointed  attorney-general,  made  him  his  deputy.  In 
1848  the  firm  was  removed  to  New  York  City,  where,  during  the  ten 
j'ears  of  its  continuance,  it  was  very  prominent  and  successful.  Mr. 
Robinson  gave  particular  attention  to  the  law  of  corporations  and 
municipalities.  After  discontinuing  his  partnership  with  Mr.  Van 
Buren  he  practiced  alone  for  several  years.  He  was  associated  with 
Charles  O'Conor  in  the  famous  railroad  cases  which  resulted  in  the 
notable  decision  in  People  vs.  Kerr,  by  which  the  Seventh  avenue, 
Broadway,  and  Dry  Dock  railways  were  enabled  to  construct  their 
lines.  Among  his  clients  were  George  Law  and  John  Kerr,  the  rail- 
road magnates.  In  1868  he  organized  with  John  M.  Scribner  the  firm 
of  Robinson  &  Scribner.  He  acted  as  referee  in  numerous  cases  of 
great  importance. 

In  1870  he  declined  the  democratic  nomination  for  the  bench  of 
the  Court  of  Appeals  in  favor  of  his  friend,  Charles  A.  Rapallo.  In 
the  same  year  he  was  elected  a  judge  of  the  Court  of  Common  Pleas,  a 
position  which  he  occupied  until  his  death.  His  decisions  are  con- 
spicuous for  fairness  and  accuracy,  displaying  exhaustive  and  patient 
study  of  the  merits  of  cases.  A  commemorative  tablet  in  his  honor 
has  been  placed  in  the  general-term  room  of  the  Court  of  Common 
Pleas  in  the  county  court-house.' 


fOBINSON,  LUCIUS  (born  in  Windham,  Greene  county,  New 
York,  November  4,  1810),  received  an  academic  education 
at  Delhi,  New  York,  pursued  legal  studies,  and  being 
admitted  to  the  bar  began  practice  in  1832.  He  was 
appointed  district-attorney,  and  in  1843  and  again  in  1845  was 
appointed  master  of  chancery  in  the  City  of  New  York.  He  was 
affiliated  with  the  democratic  organization  until  1855,  and  then 
joined  the  republican  party,  being  elected  in  1859  to  the  assembly 
and  in  1861  and  1863  to  the  office  of  state  comptroller.  Return- 
ing to  the  democratic  party  he  was  renominated  for  comptroller  in 
1865,  but  was  defeated.  He  was  a  member  of  the  constitutional  com- 
mission of  1871-72,  was  once  more  chosen  comptroller  in  1875,  and  in 
1877  was  elected  governor  of  New  York  as  the  candidate  of  the  demo- 
cratic party.  In  this  office  some  of  his  acts,  especially  his  removal  of 
County  Clerk  Gumbleton,  of  New  York,  upon  charges  preferred  by 
the  Association  of  the  Bar,  were  highly  displeasing  to  the  Tammany 

'  This  sketch  has  been  condensed  from  a  biography  in  the  "  History  of  the  Court  of  Common  Pleas  of  the  City 
and  County  of  New  York,"  by  James  Wilton  Brooks  (18il(l). 


UK  iti;N(n  and  hah  of  nkw  youk 


wry 


fiU'tioii,  and,  upon  his  i-cnomiiialioii  for  governor  in  187!)  by  the  hi-mo- 
cratic  state  convention,  tliat  Tacliou  oi-<i;anize<l  a  holt  :iii<l  ran  .lolni 
Kelly  as  an  opposing  deinocratic  caiulidate.  Tlie  (h?t'ection  cansed  his 
defeat,  althongli  tlio  rest  of  the  deinocratic  state  ticket  was  snccessful. 


OELKER,  BERXARD  (born  in  Osnabriick,  Tlanover,  Ger- 
any,  Ajtril  24,181(5;  died  in  New  Yoik  City,  March  5, 
1S8S),  enu^rated  to  America  in  1^35  and  for  a  number  of 
years  taught  private  pupils  in  New  York  City.  He  began 
the  study  of  law  in  1S38  in  the  office  of  Theodore  Sedgwick,  but  soon 
afterward  was  called  to  Harvard  University  as  an  instructor  in  the  Ger- 
man language.  While  teacliing  in  that  institution  he  took  the  three- 
3'ears'  course  in  the  law  school.  He  remained  at  Harvard  for  eighteen 
years,  during  which  he  published  various  works — text-books,  transla- 
tions, etc.  He  was  on  familiar  terms  with  the  distinguislied  New 
England  literary  characters  of  the  period.  Returning  to  New  York 
in  1S5G,  he  was  admitted  to  practice  on  the  motion  of  William  M. 
Evarts,  and  until  his  death  he  was  prominent  at  the  metropolitan  bar. 
His  clients  were  chiefly  German  merchants,  and  on  their  behalf  he 
gave  special  attention  to  commercial,  international  and  continental 
law,  the  law  relating  to  corporations,  and  particularly  to  the  common 
and  statute  law  concerning  wills  and  testaments. 


OOSEYELT,  JAMES  JOHN  (born  in  New  Y^ork  City,  Decem- 
ber 14,  1795  ;  died  there,  April  5,  1875),  an  uncle  of  Robert 
B.  Roosevelt  and  grand-uncle  of  the  present  Theodore  Roose- 
velt, was  admitted  to  the  bar  of  New  York  City  in  1818, 
having  graduated  from  Columbia  College  in  1815.  He  entered  into  a 
legal  copartnership  with  Peter  Jay,  and  took  a  lead- 
ing place  in  his  profession  and  in  politics.  He  was  a 
conspicuous  supporter  of  Andrew  Jackson's  presiden- 
tial candidacy  in  1828.  Retiring  temporarily,  he 
visited  Europe,  and  was  a  witness  of  the  stirring 
events  that  attended  the  French  revolution  of  July, 
1830.  Upon  his  return  he  again  devoted  himself  to 
law  and  politics,  and  sat  in  the  legislature  (1835  and 
1839-40)  and  in  congress  (1841-43).  Afterward  he 
took  another  foreign  trip,  during  which  he  made  a 
study  of  English.  French  and  Dutch  law  and  practice.  He  was  elected 
in  1851  a  justice  of  the  State  Supreme  Court,  and  for  a  part  of  his 
term  was  a  member  of  the  Court  of  Appeals.  Having  been  appointed 
United  States  district-attorney  for  the  southern  district  of  New  York, 
he  resigned  his  Judicial  position  in  1859  ;  but  he  served  only  one  year 
in  his  new  office. 


ROOSEVELT  ARMS. 


466  HISTORY    OF   THE   BENCH   AND   BAR   OF   NEW    YORK 

OCT,  ERASTUS  (born  in  Hebron,  Connecticut,  March  16, 
1773;  died  in  New  York  City,  December  24,  1846),  was 
graduated  at  Dartmouth  College  in  1793  and  began  the 
practice  of  the  law  in  Delhi,  New  York,  in  1796.  He  enjoyed 
professional  success,  and  was  very  active  politically  as  an  energetic 
and  able  leader  of  the  George  Clinton  school.  His  "  Addresses  to  the 
People,"  published  in  1824,  are  a  valuable  illustration  of  the  contro- 
versies of  those  early  times.  He  held  the  offices  of  member  of  the 
legislature  for  very  many  years,  representative  in  congress  (1803-5, 
1809-15  and  1831-33),  lieutenant-governor  (1820-22),  state  senator  (1840- 
44),  and  major-general  of  the  New  York  militia. 


L'GER,  WILLIAM  CRAWFORD  (born  in  Bridgewater, 
Oneida  county,  New  York,  January  30,  1824 ;  died  in  Syra- 
cuse, New  York,  January  14, 1892),  was  the  son  of  John  Ruger, 
a  hard-working  lawyer.  He  received  an  academic  education, 
began  the  study  of  law  as  a  clerk  in  his  father's  office,  and  was  admit- 
ted to  the  bar  in  Utica,  in  1853.  He  opened  an  office  in  Bridgewater 
and  continued  there  until  1853,  when  he  removed  to  Syracuse.  In  that 
city  he  practiced  until  his  elevation  to  the  bench.  He  soon  ranked  as 
one  of  the  ablest  members  of  the  Onondaga  bar,  being  noted  as  a 
shrewd,  practical  and  efficient  lawyer  rather  than  a  brilliant  orator.  In 
the  conduct  of  his  cases  he  excelled  especially  in  clearness  of  state- 
ment, methodical  arrangement  of  facts  and  logical  and  earnest  reason- 
ing. Among  the  important  suits  in  which  he  was  counsel  were  the 
Lindsley  murder  trial,  the  suits  connected  with  the  Jaycox  &  Green 
and  People's  Savings  Bank  bankruptcy,  and  the  canal  suits  instituted 
by  Governor  Tilden.     In  all  of  these  he  was  successful. 

Identified  with  the  democratic  party,  he  was  a  delegate  to  the 
"  hard-shell  "  conventions  held  at  Rome  and  Syracuse  in  1849.  He  was 
an  unsuccessful  candidate  for  congress  in  1864  and  1866.  In  1872  he 
was  one  of  the  old-line  democrats  who  supported  Charles  O'Conor  for 
the  presidency. 

He  was  elected  judge  of  the  Court  of  Appeals  in  1882  and  became 
its  fourth  chief-judge.  His  opinions  are  characterized  by  great  impar- 
tiality and  dispassionateness.  He  was  always  reluctant  to  dissent, 
manifesting  a  decided  love  of  precedent. 

He  was  the  first  president  of  the  Onondaga  Bar  Association,  and 
one  of  the  organizers  of  the  State  Bar  Association. 


lUGGLES,  CHARLES  HERMAN  (born  in  Litchfield  county. 
Connecticut,  February  lu,  1789  ;  died  in  Poughkeei)sie,  New- 
York,  June  16,  1865),  a  son  of  Samuel   Bulkeley    Ruggles 
(q.  v.),  entered  upon  the  practice  of  the  law  at  Kingston, 
after  completing  his  general  and  professional  studies.      He  served  in 


iiisi'oiiY  OK   I'lii':  I!i:n('1i   am>  uai:  m'  \i:\v    'sdiik  107 

(lie  ;iss('iiil)ly  ill  1"^'J(>  ;mtl  in  (•()I1<,m-('ss  liom  IS'JI  to  l^-J.;.  llMviiiir 
:it(;iiii('(l  considcnil)!**  professional  pi'oiiiiiit'iice,  lie  was  placed  on  the 
circuit  Ix'iich  of  Dutchess  county,  where  he  made  a  reputation  as  a 
jurist.  After  leavin<ij  this  odice  he  was  a^ain  sent  to  the  le<fislature. 
lie  sat  oil  the  bench  of  the  Court  of  Api)eals  from  1851  until  his  resig- 
nation in  August,  1855.  He  was  a  delegate  to  the  constitutional  con- 
vention of  184(5. 


UGGLES,  SAMUEL  BULKELEY  (born  in  New  Mil  ford,  Con- 
n(^cticut,  April  11,  1800;  died  on  Fire  Island,  New  York, 
August  28,  1881),  was  a  son  of  Pliilo  Ruggles,'  under  whose 
direction  he  studied  law  after  his  graduation  from  Yale 
College  in  1814,  being  admitted  to  the  bar  in  1821.  After  practicing 
with  much  success  for  some  years,  he  turned  his  attention  to  public 
pursuits,  and,  being  chosen  to  the  assembly  in  1838,  become  chairman 
of  the  ways  and  means  committee  of  that  body,  in  which  capacity  he 
rendered  a  memorable  ''  Report  upon  the  Finances  and  Internal  Im- 
provements of  the  State  of  New  York."  The  recommendations  of  this 
report  became  the  basis  for  subsequent  policy  in  the  enlargement  of  the 
Erie  canal.  "  He  was  a  commissioner  to  determine  the  route  of  the 
Erie  railroad,  and  a  director  in  1833-39,  a  director  and  promoter  of 
the  Bank  of  Commerce  in  1839,  commissioner  of  the  Croton  aqueduct 
in  1842,  delegate  from  the  United  State  to  the  international  statistical 
congresses  at  Berlin  in  18(53  and  the  Hague  in  1869,  United  States  com- 
missioner to  the  Paris  exhibition  of  1867,  and  delegate  to  the  intenia- 

tional   monetary   congress  that  was  held   there Mr.    Ruggles' 

claim  to  distinction  rests  chiefly  upon  his  canal  policy,  and  the  stead- 
fast attention  that  he  continued  to  give  to  the  Erie  canal,  both  as  a 
private  citizen  during  his  life  and  as  canal  commissioner,  in  which 
office  he  served  from  1840  till  1842,  and  again  in  the  j^ear  18/)8." ' 

He  was  a  prominent  citizen  of  New  York  City  ;  he  laid  out 
Gramercy  park,  presenting  it  to  the  surrounding  property  owners 
(1831).  and  was  instrumental  in  the  shaping  of  Union  square.  He  was 
identified  with  Columbia  College,  the  Astor  Librarj%  the  state  chamber 
of  commerce  and  the  general  convention  of  the  protestant  episcopal 
church.    He  wrote  many  papers  on  public  and  social  topics. 


UNKLE,  CORNELIUS  A.  (born  in  Montgomery  county,  New 
York.  December  9,  1832;  died  in  New  York  City,  March  19, 
[|  1888),  was  a  brother  of  Professor  John  Runkle,  the  mathe- 
matician, and  husband  of  Lucia  A.  Runkle,  the  writer.  He 
was  a  graduate  of  Harvard  Law  School  (IS55),  and  after  practicing  for 
a  while  in  Ne\v  York  City  was  placed  in  charge  of  the  law  division  of 

'  Philo  Ruggles  was  a  leading  la%vyer  of  Poughkeepsie,  being  surrogate  and  district-attorney  there. 
'•'  Vppleton's  '■  Cyciopiedia  of  American  Biography.' 


468       HISTORY  OF  THE  BENCH  AND  BAR  OF  NEW  YORK 

the  custom-liouse  as  deputy  collector.  Eetiring  from  that  office,  he 
devoted  himself  professionally  to  litigations  arising  nnder  the  tariff 
and  internal  revenue  laws.  He  was  counsel  for  the  Tribune  association 
for  a  quarter  of  a  centur3\ 


[AMPSON,  WILLIAM  (born  in  Londonderry,  Ireland,  Janu- 
ary 17,  1764  ;  died  in  New  York,  December  27,  1836),  was 
educated  at  Dublin  University,  became  a  barrister,  and  fre- 
quently acted  as  counsel  for  members  of  the  Society  of 
United  Irishmen.  Upon  the  failure  of  the  rebellion  of  179S  he  lied, 
but  was  brought  back  to  Dublin,  tried  for  complicity,  and  released 
upon  the  condition  that  he  would  go  to  Portugal.  He  was  imprisoned 
in  that  country  at  the  instance  of  the  English  government.  He  escaped 
to  France,  returned  to  England,  and  defied  the  authorities,  but  was 
allowed  to  depart  to  this  country.  He  established  himself  in  New 
York  Citj^  in  1806,  and  built  up  a  considerable  practice.  Through  his 
writings  he  exercised  a  large  influence  in  bringing  about  amendments 
and  codification  of  the  laws  of  the  state.  In  1825  he  removed  to 
Georgetown,  District  of  Columbia.  "  More  than  one  hundred  of  the 
most  eminent  lawyers  and  judges  of  New  York  united  in  a  letter  of 
regret  at  his  removal,  with  a  strong  expression  of  their  respect  for  his 
attainments,  genius  and  virtues."  Governor  De  Witt  Clinton  and 
Chancellor  Kent  sent  him  special  letters  of  regard.  He  published 
"  Memoirs  of  William  Sampson  "  (New  York,  1807,  and  London,  1832), 
"  The  Catholic  Question  in  America  "  (1813),  "  Discourse  before  the  New 
York  Historical  Society  on  the  Common  Law  "  (1824),  "  Discourse  and 
Correspondence  with  Learned  Jesuits  upon  the  History  of  the  Law  " 
(1826),  and  "  History  of  Ireland  "  (1833).  An  appreciative  article  upon 
his  addresses  and  writings,  with  an  account  of  the  part  he  played  in 
the  first  movement  toward  codification,  and  an  extended  review  of  the 
case  of  the  "  Journeymen  Cordwainers  of  the  City  of  New  York,"  in 
which  he  appeared  for  the  defence,  may  be  found  in  the  August  num- 
ber of  the  Green  Bag,  1896. 

lANDFORD,  CHARLES  W.  (born  in  Newark,  New  Jersey, 
May  5,  1796  ;  died  in  Avon  Springs,  Livingston  county,  New 
York,  July  25,  1878),  studied  in  the  law  office  of  Ogden  Hoff- 
man, of  New  York  City,  and  after  his  admission  to  the  bar 
practiced  continuously  in  that  city  during  a  long  J3rofessional  career. 
He  was  counsel  in  many  notable  railroad  cases,  particularly  in  connec- 
tion with  the  Harlem  Railroad,  of  which  he  was  counsel  for  a  score  of 
years.  At  an  early  period  he  attempted  the  role  of  theatre  manager, 
but  abandoned  it  after  two  theatres  had  been  burned. 

Outside  his  profession  he  achieved  military  distinction.     In  the 
militia  of  New  York  he  rose  from  a  private  to  the  command  of  the  1st 


iiisroiiv  OK  'iiir:  ;u:n(II   and  mm:  oi'  m;\v   V()i:k  4';'.) 

division  of  (he  stnlc,  and  was  in  conmiand  on  tin-  occasions  of  iha 
Astor  placv  riot,  Flour  riot,  Street  Preadiers'  riot,  and  Draft  riot— lii.s- 
toric  disturbances  in  the  streets  of  tlie  metropolis,  lie  had  been  in 
coniniand  of  the  militia  of  the  City  of  New  York  for  more  than  thirty 
years  when  retired  by  (loveiiior  Fenton  in  18()7.  One  of  the  volunteers 
answering  Lincoln's  first  call  at  the  commencemcMit  of  the  civil  war,  he 
was  in  command  at  Harper's  Ferry  while  the  famous  battle  at  Bull 
Run  was  in  X)rogress. 

He  was  a  vice-president  of  the  City  Bar  Association. 


[ANDFORD,  EDWARD  (born  in  Ovid,  New  York,  September 
22,  1S0!> ;  died  at  sea,  in  the  ill-fated  steamship  Arctic,  Sep- 
tember 17, 1S54),  after  receiving  an  ordinary  education,  became 
a  teacher  and  lecturer  at  Albany,  New  York,  studied  law,  and 
was  admitted  to  the  bar  in  1S33.  He  began  practice  in  New  York  City, 
where  in  1842  lie  received  an  appointment  to  the  bench  of  the  Criminal 
Court.  In  1843  lie  was  a  member  of  the  state  senate.  He  eventually 
achieved  a  high  position  in  the  practice  of  law  in  the  City  of  New  York. 


[ANDFORD,  LEWIS  HALSEY(born  in  Ovid,  New  York,  June 
8,  1807 ;  died  in  Toledo,  Ohio,  July  27, 1852),  a  brother  of  the 
preceding,  was  admitted  to  the  bar  in  1S28,  his  law  studies 
having  been  pursued  at  Syracuse.  In  1833  he  removed  to  New 
York  City.  In  March,  1843,  he  was  appointed  assistant  vice-chancellor  of 
the  1st  circuit,  and  in  1846  vice-chancellor.  The  next  year  he  became 
a  Justice  of  the  Superior  Court  of  the  City  of  New  York,  and  continued 
upon  this  bench  until  his  death.  He  was  considered  one  of  the  ablest 
judges.  He  compiled  or  edited  many  volumes  of  reports.  These  include 
four  volumes  of  the  ''  New  Y^'ork  Chancery  Reports  "  (1846-50),  and  the 
"  New  York  Superior  Court  Reports  "  (1849-52). 


ANFORD,  CHARLES  F.  (born  in  New  Haven,  Connecticut, 
in  1827 ;  died  in  New  York  City,  October  21,  1881),  was  the 
son  of  a  prominent  merchant,  and  was  descended  from  old 
Puritan  stock.  He  entered  Y'ale  College  at  sixteen,  gradu- 
ating in  due  course  with  honors.  He  afterward  took  the  elementary 
law  course  of  the  Y'ale  Law  School,  and  in  the  spring  of  1849  entered 
the  law  office  of  Butler  &  Evarts,  of  New  Y'ork  City.  In  1S52  he 
began  practice  for  himself.  He  was  associated  at  different  times  with 
Henry  Brace,  Lewis  B.  and  Charles  H.  Woodruff,  and  later  with  Charles 
II.  Woodruff  and  E.  Randolph  Robinson,  under  the  firm  name  of  San- 
ford,  Robinson  &  Woodruff.  Although  an  attractive  speaker,  his  dif- 
fident disposition  prevented  his  appearance  in  criminal  cases,  but  he 


470  HISTORY   OF   THE   BENCH   AND   BAR   OF  NEW  YORK 

ranked  high  as  an  office  lawyer  and  attained  marked  success.  The  De 
Forest-Manill  case,  involving  over  $2,000,000,  and  the  suit  against  the 
Camden  &  Amboy  Railroad  Company,  involving  nearly  $500,000,  were 
cases  in  which  he  conspicuously  displayed  his  legal  talents.  In  the  fall 
of  1875  he  was  elected  judge  of  the  Superior  Court  of  New  York  City. 
As  judge  he  was  distinguished  by  the  care,  patience  and  ability  with 
which  he  did  his  work.  He  died  in  office,  after  a  protracted  illness 
that  for  more  than  two  years  had  interfered  with  the  performance  of 
his  judicial  duties. 


|>^jC>:|ANFORD,  NATHAN  (born  in  Bridgehampton,  Suffolk  coun- 
f^^Sk  ty.  New  York,  November  5,  1777  ;  died  in  Flushing,  New 
rj^^^jjf  York,  October  17,  1838),  was  admitted  to  the  New  York  bar 
in  1799,  after  attending  Yale  College  and  studying  law.  He 
began  the  practice  of  law  in  New  York  City,  but  was  soon  occupied 
with  public  affairs,  his  political  life  continuing  to  eclipse  his  profes- 
sional career  to  the  end  except  during  the  periods  from  1803  to  1816 
and  from  1821  to  1825,  when  his  i)ublic  service  was  in  the  line  of  his 
profession, — in  the  first  instance  as  United  States  attorney,  and  in  the 
second  as  chancellor  of  the  state,  succeeding  Kent.  President  Jeffer- 
son appointed  him  United  States  commissioner  in  bankruptcy  while 
he  was  United  States  district-attorney.  In  his  official  capacity  he  had 
charge  of  many  important  cases  connected  with  the  international  diffi- 
culties with  France  and  England  and  the  war  of  1812.  He  served  two 
terms  in  the  assembly,  being  for  one  year  speaker,  and  also  was  for 
three  years  a  member  of  the  state  senate.  From  1815  to  1821,  and 
from  1826  to  1831,  he  was  a  senator  of  the  United  States.  He  was  one 
of  the  most  active  members  of  the  state  constitutional  convention  of 
1821. 


|AYAGE,  JOHN  (born  in  New  York,  in  1779  ;  died  in  Utica, 
New  York,  October  19,  1863),  was  graduated  in  17i»0  at  Union 
College,  and  took  a  high  rank  at  the  bar  not  long  after  his 
admission.  He  filled  many  i)ublic  offices — was  a  member  of 
the  assembly  and  congress,  state  comptroller.  United  States  district- 
attorney,  United  States  assistant- treasurer  in  New  York,  and  a  presi- 
dential elector  on  the  Polk  ticket. 

On  January  29, 1823,  he  was  appointed  chief-justice  of  the  Supreme 
Court  of  the  state,  and  he  occupied  that  position  until  1836,  resigning 
to  accept  the  place  of  clerk  of  the  court  at  Utica,  to  which  he  was 
appointed  by  his  associates.  His  resignation  was  due  to  the  inade- 
quacy of  the  compensation  then  paid  the  judges  of  the  state. 

Chief-Justice  Savage's  opinions  are  reported  in  Cowen's  and  the 
first  fifteen  volumes  of  Wendell's  Reports.     They  are  classed  witli  the 


HIsrOUY    OF    THK    IIKNCII    AM)    HAK    OF    NFW     VolIK  171 

ablost  of  AinciicMii  jurlicial  opinions,  Ix'iiii;  ('(jually  ilistin<ruisli(M|  lor 
sound  rcasoiiiiin'  and  pi'ofound  Icaininii:.  lit*  nnil'oi-ndy  ^av<!  most 
s('i'ni)ulons  allcntion  not  only  to  principles  hnt  also  to  Jippi-ovr-d 
antlioritit's,  and  seemed  to  tnUe  jjiidc  in  ,i;oiiii;-  l)a('k  to  the  yf:ir  books 
and  old  horn -books  of  the  hiw. 


fCTIOONMAKEH,  ArcUISTUS,  born  in  Ulster  county,  New 
York,  Maicli  2,  1828;  died  in  that  county,  April  11, 
is;t4),  was  educated  in  the  common  schools,  taught  school 
and  studied  hiw.  He  was  admitted  to  practice  in  1853, 
locating  at  Kingston.  Closely  applying  himself,  he  rose  to  high  rank 
among  the  prominent  members  of  the  Ulster  county  bar.  In  1863  he 
was  elected  judge  of  the  county,  and  lie  was  re-elected  in  1867.  In 
187;")  he  represented  Greene  and  Ulster  counties  in  the  state  senate,  and 
in  1877  became  attorney -general  of  the  state. 


>^cv|COTT,  JOHN  MORIN  (born  in  New  York  City,  in  1750 ;  died 
l^^k^  there,  September  4,  1784),  was  of  distinguished  ancestry.' 
<^^^J7  lie  played  a  prominent  part  in  New  York  City  in  connection 
with  the  revolutionary  war.  He  was  one  of  three  leading 
lawyers  (William  Smith,  Junior,  and  William  Livingston  being  the 
others),  who  according  to  tlie  bitter  i)artisan  historian  Jones,  having 
been  so  unfortunate  as  to  be  educated  at  Yale  College — "a  college 
remarkable  for  its  persecuting  spirit,  its  republican  principles,  its 
intolerance  in  religion,  and  its  utter  aversion  to  bishops  and  all  earthly 
kings," — and  having  further  been  degenerated  along  these  lines  by  all 
studying  together  in  the  office  of  the  William  Smith,  Senior,  '*  formed 
themselves  into  a  triumvirate  and  determined,  if  possible,  to  pull  down 
church  and  state,  to  raise  their  own  government  and  religion  upon  its 
ruins,  or  to  throw  the  whole  province  into  anarchy  and  confusion." 
He  was  one  of  the  founders  of  the  sons  of  liberty,  and  his  influence 
in  arousing  a  spirit  of  independence,  through  speeches  and  newspaper 
articles,  was  very  great  in  New  York.  He  was  a  member  of  the  con- 
tinental congress  of  1775  ;  of  the  New  York  committee  of  safety  of 
1776  ;  the  provincial  congress  of  1776  ;  was  a  brigadier-general  in  the 
Revolution  (participating  in  the  battle  of  Long  Island)  until  March, 
1777 ;  became  secretary  of  state  of  New  York  in  the  latter  year ;  was 
a  member  of  Congress  between  1780  and  1783,  and  was  again  secretary 
of  state  of  New  York  in  1784,  holding  the  office  at  the  time  of  his  death. 

>  He  was  the  great-great-grandson  of  Sir  John  Scott,  came  to  the  province  of  New  York  about  1T02.  He  at 
baronet,  of  Ancrum,  Scotland.  His  grandfather.  John  one  time  commanded  Fort  Hunter,  a  suonghold  on  the 
Scott— Sir  John's  grandson  through  his  second  son, —      Mohawk  river. 


472  HISTORY   OF   THE   BENCH   AXD   BAR   OF   NEW   YORK 

CUDDER,  HENRY  J.  (born  at  Xorthport,  Long  Island,  Sep- 
tember 18,  1825  ;  died  in  New  York  City,  Febrnary  10,  1886), 
attended  Huntington  Academy,  was  graduated  from  Trinity 
College  in  18i6,  studied  law  with  "William  Curtis  Xoj'es,  and 
was  admitted  to  the  New  York  bar  in  1848.  Practicing  his  profession 
in  connection  with  Judge  Henry  E.  Davies  prior  to  1854,  in  the  latter 
year  he  formed  a  partnership  with  James  C.  Carter,  which  continued 
until  his  death.  This  association  was  thus  one  of  the  oldest,  as  it  was 
one  of  the  most  notable,  of  the  legal  partnerships  of  New  York  City 
during  the  period  covered  by  it. 

Mr.  Sc  udder  rose  to  one  of  the  leading  places  at  the  bar.  He  was 
a  learned  lawyer,  a  generous  adversary,  an  eloquent  and  powerful  ad- 
vocate, and  possessed  such  veneration  for  the  law  that  its  just  inter- 
pretation was  of  much  greater  concern  to  him  than  mere  case-^A-inning. 
He  enjoyed  the  confidence  of  his  professional  brethren  in  a  remark- 
able degree,  and  was  frequently  selected  as  referee  in  cases  of  great 
moment.  His  opinions  in  marine  insurance  matters,  to  which  he  gave 
much  attention,  were  considered  authoritative.  A  founder  of  the  Bar 
Association  of  the  City  of  New  York,  he  was  one  of  its  vice-presidents 
and  a  member  of  its  executive  committee. 

Mr,  Scudder,  with  two  exceptions,  refused  all  invitations  to  con- 
test for  political  honors.  He  once  consented  to  the  use  of  his  name  by 
his  party  for  the  office  of  judge  of  the  Superior  Court  of  New  York 
City,  but  without  the  least  probability  of  election.  He  represented 
the  1st  congressional  district  of  New  York  in  the  43d  congress,  but 
refused  a  renomination. 


ELBEN,  HENRY  ROGERS  (born  in  Lyme,  New  London 
county,  Connecticut,  October  14,  1805  ;  died  in  Rochester, 
New  York,  in  September,  1885),  was  a  son  of  Joseph  Selden, 
and  belonged  to  a  branch  of  the  family  that  for  two  centuries 
had  been  prominent  in  the  Connecticut  valley.  He  was  educated  at 
the  local  institutions  of  his  native  town,  and  pursued  his  legal  studies 
in  the  office  of  Gardner  &  Selden  in  Rochester.  He  was  admitted  to 
the  bar  in  Utica  in  1830,  and  immediately  commenced  practice  in 
Clarkson,  on  the  western  border  of  Monroe  county.  In  1851  he  received 
the  appointment  of  reporter  of  the  Court  of  Appeals,  and  he  edited  the 
New  York  Reports  from  the  fifth  to  the  tenth  volumes,  inclusive.  He 
also  edited  "  Selden's  Notes  of  Cases  in  the  Court  of  Appeals,"  cover- 
ing the  same  period.  He  resigned  on  account  of  ill-health  in  1854. 
In  1850  he  was  elected  lieutenant-governor  of  the  state  on  the  republi- 
can ticket. 

In  1862  Governor  Morgan  appointed  him  to  the  Court  of  Appeals 
in  place  of  his  brother.  Judge  Samuel  L.  Selden,  who  had  resigned  ; 
and  though  entitled  under  the  constitution,  as  the  judge  having  the 
shortest  time  to  serve,  to  preside  over  the  court,  he  declined,  insisting 


IIISTOKV    ol'    llir:    IMINCII    AM)    HAIl    OF    NKW    YOUIv  17:? 

tliat  Jiidgc  Dciiio,  ( lio  Ufxl  in  oi'dcr  of  succession,  slioiiM  assume  llie 
duties  of  lli(^  position,  liy  poi)ular  vote  in  the  next  election  he  was 
continued  on  tlie  bencii.  His  decisions  are  reconU'd  in  vohiines  2."»  lo 
;51,  inclusive,  of  the  New  York  Reports.  In  .January,  ISC.."),  \w,  resii^ned. 
The  next  winter  he  was  elected  to  the  assembly  from  Monroe  county. 

His  subsequent  jiractice  at  Rochester,  whither  he  had  I'emoved  in 
1859,  was  larg-e  and  important.  A  case  of  notxiriety  throughout  the 
state  was  his  appearance  before  Judge  Hull  in  tlie  United  States  District 
Court  at  Albany  in  187;{,  in  behalf  of  Susan  R.  Anthony,  who  had  been 
arrested,  charged  with  illegally  voting  at  the  presidential  election  of 
1S72.  lie  was  one  of  the  signers  of  the  call  for  the  convention  of  1872 
which  nominated  Iloi-ace  Greeley  for  pi'esident.  In  1870,  owing  to  ill- 
health,  he  relinquished  his  profession  and  retired  to  quiet  life  in 
Rochester.    In  1858  Yale  conferred  upon  him  the  degree  of  LL.D. 


jELDEN,  SAMUEL  LEE  (born  in  Lyme,  New  London  county, 
(Connecticut,  October  12,  1800 ;  died  in  Rochester,  New 
York,  September  20,  1S7G),  elder  brother  of  the  i^receding, 
was  educated  in  the  local  schools  and  academies  of  New 
England,  studied  law  at  Rochesterville,  New  Y'ork,  with  his  brother- 
in-law,  Joseph  Spencer,  and  in  1825  was  admitted  to  the  bar  at 
Rochester.  He  w^as  immediately  received  into  partnership  with  Addi- 
son Gardiner,  and  soon  was  occupied  with  most  important  business. 
In  1830  he  was  chosen  clerk  of  the  board  of  trustees  of  Rochester. 
Having  previously  shown  j  dicial  ability  as  justice  of  the  peace,  in 
February,  1831,  he  was  elected  lirst  judge  of  the  Court  of  Common 
Pleas  for  Monroe  county.  After  leaving  that  bench  he  was  for  many 
years  clerk  of  the  8th  Chancery  Circuit  of  New  Y^ork  state.  In  1847, 
at  the  first  election  under  the  constitution  of  1846,  he  was  chosen  to  the 
Supreme  Court  as  a  democrat.  As  judge  he  exerted  a  marked  influ- 
ence in  construing  the  new  code  of  procedure,  and  reducing  the  new 
practice  to  consistency  and  uniformity.  He  remained  a  member  of  the 
Supreme  Court  until  1856,  when  he  was  elevated  to  the  Court  of 
Appeals.  He  took  a  prominent  part  in  the  decisions  of  that  tribunal, 
especially  those  relating  to  the  law  of  corporations,  determining  their 
powers,  liabilities  and  duties.  The  fifteen  volumes  of  the  New  Y'ork 
Reports,  commencing  with  Volume  x.,  contain  his  contributions  to 
the  judicial  records  of  the  highest  court.  It  is  a  singiTlar  circumstance 
that  Mr.  Selden  was  elected  to  both  the  Supreme  Court  and  Court  of 
Appeals  before  he  had  appeared  at  the  bar  of  either.  Overpowered 
by  domestic  bereavements,  in  1862  he  resigned  from  the  bench. 

Judge  Selden  was  one  of  the  original  promoters  of  the  electric 
telegraph  system,  and  with  others  contributed  the  means  for  the  con- 
struction of  the  first  section  of  the  line  under  the  Morse  patent,  con- 


474  HISTORY    OF   THE  BENCH   AND   BAR   OF  NEW  YORK 

necting  tlie  seaboard  with  the  western  states,  and  for  fifteen  years  was 
a  prominent  factor  in  placing  the  telegraph  business  on  a  permanent 
and  successful  basis.  The  degree  of  LL.D.  was  conferred  upon  him  by 
the  University  of  Rochester  in  1856. 


PIEWARD,  WILLIAM  HEXRY  (born  in  Florida,  Orange 
county,  New  York,  May  16,  1801  ;  died  in  Auburn,  Xew 
York,  October  10,  1872),  was  the  son  of  Doctor  Samuel  S. 
=^  Seward,  who  was  both  a  practicing  physician  and  a  merchant.' 
He  attended  Farmers'  Hall  Academy  at  Goshen,  New  York,  and  Union 
College  from  1816  to  1819,  interrupting  his  course  at  the  latter  for  a 
year,  mainly  spent  in  teaching  in  the  south,  and  returning  was  grad- 
uated from  Union  in  1820.  His  law  studies  were  prosecuted  with  John 
Anthon,  of  New  York  City,  and  Ogden  Hoffman  and  John  Duer,  of 
Goshen,  New  York.  Admitted  to  the  bar  at  Utica  in  1822,  the  follow- 
ing year  he  began  practice  at  Auburn,  New  York,  in  partnership  with 
Honorable  Elijah  Miller,  whose  daughter  became  his  wife. 

Mr.  Seward  soon  won  recognition  at  the  bar  of  Cayuga  county,  at 
the  same  time  taking  an  active  part  in  politics.  From  the  beginning 
of  his  career  he  was  a  vigorous  opponent  of  the  democratic  party. 
After  a  brief  association  with  the  anti-masonic  agitators  he  became  one 
of  the  leaders  of  the  whigs.  He  was  elected  to  the  state  senate  in  1830, 
and  re-elected,  greatly  distinguishing  himself  in  that  body.  In  1S34 
he  was  the  whig  candidate  for  governor,  but  he  Avas  defeated  by  Marcy. 
This  early  period  of  his  public  life  was  closed  by  his  return  to  the 
practice  of  law  in  1835. 

He  was  elected  governor  in  1838  and  again  in  1840.  Among  the 
measures  of  jjolicy  which  he  favored  during  his  incumbency  of  that 
office  were  the  abolition  of  the  Court  of  Chancery  and  the  establishing 
of  an  elective  judiciary  system,  schemes  which,  though  not  popular  at 
the  time,  were  subsequently  adopted. 

Between  1843  and  1849,  after  his  retirement  from  the  governorship, 
occurred  Mr.  Seward's  most  brilliant  work  as  a  lawyer  purely,  and  he 
showed  that  the  state  could  boast  few  who  could  equal  him  either  for 
powerful  advocacy  or  in  the  profound  understanding  and  able  i)re- 
sentation  of  the  fundamental  principles  of  the  law.  He  distinguished 
himself  in  the  intricacies  of  patent  law  and  in  the  trial  of  notable 
criminal  cases.  Undoubtedly  several  of  these  famous  suits  had  a  deter- 
mining influence  upon  his  subsequent  life,  bringing  him  forward  as  an 
opponent  of  the  institution  of  slavery,  courageous  in  championing  his 
convictions.  Even  threats  of  violence  did  not  deter  him  in  1846  from 
the  defence  of  the  negro  Freeman,  who  had  horribly  butchered  a  white 
family  at  Auburn,  and  his  eloquent  demonstration  of  a  case  of  insanity 

>  Mr.  Seward  was  of  Welsh  descent  on  his  father's     founder  of  the  family  in  thif  country  was  a  \VeU\\ 
Bide  and  of  Irish  ancestry  through  his  mother.     The     colonist  in  Connecticut. 


i 


IIIS'IOKY    OK     TIIK    MKNCII     AM)    liAU    OF    NKW    VoKK  '175 

has  loiii;-  been  coiisidcnMl  one  of  the  iiiosl  l)rilli:iiil  fxaiiiplcs  (d"  such 
special  J)lea(lin^^  In  1S47  he  ably  deleiicUul  .lohii  \'an  Zaiidf  in  a 
criminal  prosecution  for  assisting  in  the  escape  of  cei-lain  fn^dtive 
slaves.  In  his  defence  of  Horace  Greeley  in  184."),  in  the  libel  suit  against 
the  celebrated  editor  by  J.  Feniniore  Co()i)ei\  Mr.  Seward  delivered  a 
characteristic  and  most  eloquent  plea  in  behalf  of  the  ir(!edom  of  the 
press. 

From  18-49  until  his  final  retirement  from  active  life  Mr.  Seward 
was  constantly  in  the  i>ublic  service,  being  United  States  senator  from 
iVew  York  for  two  terms  and  secretary  of  state  of  the  United  States 
from  the  beginning  of  Lincoln's  administration  until  the  end  of  John- 
son's (18G1  to  18t)9).  It  does  not  come  within  the  scope  of  this  work 
to  trace  the  events  of  his  great  career  in  that  long  period,  which  have 
a  conspicuous  place  in  the  history  of  the  republic. 


EYMOUR,  HORATIO  (born  in  Pompey  Hill,  Onondaga 
county.  New  York,  May  31,  1810  ;  died  in  Utica,  New  York, 
February  12,  1880),  studied  law  with  Samuel  Beardsley  and 
Greene  C  Bronson,  and  was  admitted  to  the  New  York  bar 
in  1832.  Although  this  suffices  to  number  him  among  the  statesmen- 
lawyers  who  have  been  the  glory  of  the  New  York  bar,  he  never  prac- 
ticed his  i)rofession.  There  can  be  no  doubt,  however,  that  his  legal 
training  was  of  great  advantage  to  him  in  his  illustrious  and.  valuable 
public  career. 

HAFFER,  CHAUNCEY  (born  in  Broome  county.  New  York, 
June  4, 1818  ;  died  in  New  York  City,  May  15, 1894),  was  the 
son  of  Gilbert  Shaffer,  a  native  of  Columbia  county,  New 
York,  and  Sarah  Burdick,  a  member  of  a  prominent  Rhode 
Island  family.  He  was  graduated  at  the  Wesleyan  University  in  1836, 
and  for  two  years  was  principal  of  an  academy  in  Oneida  county, 
meantime  studying  medicine.  He  was  admitted  to  the  bar  in  1843,  and 
ever  afterward  was  in  active  practice,  becoming  one  of  the  most  cele- 
brated criminal  lawyers  of  the  state.  During  his  career  he  defended 
thirty-three  murderers,  only  one  of  Avhom  was  convicted.  In  1869, 
however,  he  discontinued  this  variety  of  practice,  having  taken  an  oath 
never  again  to  defend  a  murder  case.  One  of  his  most  famous  trials 
was  his  prosecution  of  Stevens,  accused  of  poisoning  his  wife,  which 
lasted  for  twenty-one  days,  resulting  in  conviction,  notwithstanding 
the  able  efforts  of  very  distinguished  counsel  on  the  other  side.  In 
another  well-remembered  case  he  succeeded  in  establishing  the  propo- 
sition that  "  reputation  and  cohabitation  "  constitute  marriage,  which 
became  a  precedent. 

Mr.  Shaffer  was  an  eloquent  public  speaker.     In  the  latter  part  of 
his  life  he  took  a  strong  interest  in  the  temperance  cause. 


476 


HISTORY    OF  THE  BENCH  AND   BAK   OF  NEW   YORK 


HERMAN,  HENRY  (born  in  Albany,  New  York,  March  6, 
1S08  ;  died  in  Washington,  District  of  Columbia,  March  28. 
1879),  was  graduated  at  Yale  College  in  1829,  and  after  ad- 
mission to  the  bar  practiced  for  a  while  in  Connecticut,  Al- 
bany and  New  York  City,  but  mainly  in  the  City  of  Washington, 
where  he  held  a  position  in  the  treasury.  He  published  "  An  Analyti- 
cal Digest  of  the  Law  of  Marine  Insurance  to  the  Present  Time"  (New 
York,  1841),  a  "Governmental"  history  of  the  United  States  (1843),  and 
a  history  of  slavery  (1858). 


IBLEY,  MARK  HOPKINS  (born  in  Great  Barrington,  Massa- 
chusetts, in  1796  ;  died  in  Canandaigua,  New  York,  Septem- 
ber 8,  1852),  was  carefully  educated,  studied  law,  and  having 
removed  to  Canandaigua  in  1814  was  admitted  to  the  bar,  and 
became  an  exceedingly  successful  advocate.  He  was  active  in  politics. 
He  was  a  member  of  the  assembly  in  1834  and  1835,  a  member  of  con- 
gress from  1837  to  1839,  subsequently  state  senator,  and  in  1840  became 
county  judge. 


ILLE,  NICASIUS  DE  (born  in  Holland  about  1600),  enjoys 
the  distinction  of  being  the  first  councillor  of  the  Dutch  col- 
ony of  New  Amsterdam,  arriving  in  this  country  July  24, 
1633.  He  had  been  bred  a  lawyer,  and,  with  the  exception  of 
Adrian  Van  der  Donck,  was  undoubtedly 
the  first  of  that  profession  in  New  Amster- 
dam, now  the  City  of  New  York.  He  was 
an  important  and  useful  man  in  the  early 
colonial  government.  A  resident  for  a  number  of  years  of  New 
Utrecht,  Long  Island,  he  was  the  author  of  a  concise  history  of  that 
settlement. 


JSslcccjuusct/M 


MITH,  EDWARD  DELAFIELD  (born  in  Rochester,  New 
York,  May  8,  1826 ;  died  in  Shrewsburj',  New  Jersey,  April 
12,  1878),  was  the  son  of  Doctor  Archelaus  Smith,  a  surgeon 
of  the  war  of  1812.  He  was  educated  at  the  University  of 
the  City  of  New  York,  graduating  at  the  age  of  twenty,  and  two  years 
later  was  admitted  to  the  bar.  He  formed  a  partnership  with  Clift 
Smith  in  1851,  and  later  with  Isaac  T.  Martin  and  Augustus  F.  Smith, 
a  brother.  From  1854  to  1859  he  published  four  volumes  of  reports  of 
selected  judicial  decisions  of  the  Court  of  Common  Pleas,  known  as 
"  E.  D.  Smith's  Reports."  He  was  for  a  time  a  member  of  the  law  fac- 
ulty of  the  University  of  the  City  of  New  York,  and  until  his  death  a 
member  of  the  law  committee  of  the  council.  In  April,  1801,  he  be- 
came United  States  district-attorney  at  New  York,  and  while  holding 


iiisToUY  OK  THK  i?i;ncii   am>  itAi:  (if  nhw  yohk  477 

that  odicc  brought  to  the  scallold  Natliaiiicl  (iordoii,  niastci' of  llio 
slave-shii)  Kric.  He  also  conducted  the  cases  a^^ainst  .John  N.  An- 
drews, a  U'ader  of  the  New  York  riots.  He  resifjjned  as  tiistri('t-attor- 
iK^y,  resumed  pi'actice  ah)ne  and  built  up  a  lari^e  and  lucrative  busi- 
ness, lie  later  was  appointed  cor]>oration  counsel,  bein^  succeeded  by 
William  C.  Whitney  in  1875.  At  the  time  of  his  death  he  was  attor- 
ney of  record  in  the  Jumel  case. 


MITTI,  ERAS:MrS  DARWIX  (born  in  De  Ruyter,  Madison 
county,  New  York,  October  10, 18()() ;  died  in  Rochester,  New 
Yoi'k,  November  11,  1883),  attended  Hamilton  College  and 
studied  law.  He  served  three  terms  as  master  in  chancery  from 
1833.  In  1841  he  became  clerk  of  tlie  8th  New  York  district,  having  been 
injunction  master  the  year  previous.  Elected  a  justice  of  the  Supreme 
Court  of  the  state  in  1855,  he  served  continuously  on  that  bench  until 
his  retirement  on  account  of  age  in  1877.  During  this  i)eriod  he  was 
long  assigned  to  general  term  (from  1872  to  1877),  and  sat  upon  the 
Court  of  Appeals  bench  in  1802  and  again  in  1872.  The  most  famous 
of  his  decisions  was  the  one  delivered  in  the  case  of  Hayes  vs.  Powers, 
in  which  he  vindicated  the  authority  of  the  federal  government  to 
issue  paper  money  during  war  and  constitute  it  a  legal  tender.  Of 
this  case  Chief- Justice  Chase,  of  the  United  States  Supreme  Court, 
said :  ''  Its  influence  on  the  credit  of  the  government  was  equal  to  a 
victory  in  the  lield." 

|^>s^pnTH,  ERASMUS  PESHINE  (born  in  New  Y'ork  City,  March 
l^^^fe  2,  1814: ;  died  in  Rochester,  New  Y^ork,  October  21,  1882),  was 
|j^^^;  graduated  at  Columbia  College  in  1832  and  at  Harvard  Law 
^  School  in  1833,  engaging  in  practice  in  Rochester.     In  1850 

he  became  professor  of  mathematics  in  Rochester  University,  and  in 
1853  superintendent  of  public  instruction  for  the  State  of  New  York. 
Between  1857  and  18«U  he  was  reporter  of  the  Court  of  Appeals.  In 
the  latter  year  he  was  appointed  examiner  of  claims  by  Secretary  Sew- 
ard, also  continuing  under  Secretary  Hamilton  Fish,  and  in  that  im- 
portant capacity  he  performed  services  of  much  value  to  the  nation. 
He  was  well  versed  in  international  law,  on  Avhich  account  he  was  rec- 
ommended to  the  mikado  of  Japan,  who  desired  to  employ  an  adviser 
in  this  department.  He  served  Japan  live  years,  especially  distin- 
guishing himself  by  breaking  up  the  Chinese  "  coolie  "  trade. 


IMITH,  HENRY^  KENDALL  (born  on  the  island  of  Santa 
Cruz,  April  2,  1811  ,  died  in  Buffalo,  New"  York,  Sex^tember 
23,  1854),  was  the  son  of  a  landed  proprietor  of  Santa  Cruz, 
who,  after  the  transfer  of  the  island  by  England  to  Denmark 
in  1815,  became  bankrupt.    The  son,  at  the  age  of  eight,  w^as  sent  to  Bal- 


478  HISTORY   OF  THE   BENCH   AND   BAR   OF   NEW   YORK 

timore,  Maryland,  where  lie  received  a  good  education.  At  seventeen  he 
entered  a  dry-goods  store  in  New  York,  as  a  clerk,  but  soon  afterward  he 
left  this  employment  to  begin  the  study  of  the  law  in  the  office  of  Daniel 
Cady,  at  Jolmsto-v^Ti.  He  was  admitted  to  the  bar  in  that  place  in  1S32, 
and  soon  became  prominent  in  his  profession  and  in  democratic  poli- 
tics. Removing  to  Buffalo  in  1837,  he  was  in  partnership  there,  suc- 
cessively, with  Israel  T.  Hatch,  George  W.  Clinton,  General  Isaac  Yer- 
planck,  and  R.  V.  Stevens.  He  rose  to  the  position  of  a  leader  of  the 
Buffalo  bar,  and  many  of  the  cases  in  which  he  took  part  became 
precedents  in  the  Supreme  Court  and  the  Court  for  the  Correction  of 
Errors.  He  was  appointed  district-attorney  of  Erie  county  in  1838, 
but  soon  resigned.  In  1844:  he  was  made  recorder  of  Buffalo,  and  in 
1850  was  elected  mayor.  From  184:6  to  1848  he  was  postmaster  of  the 
city.  

jMITH,  JOSHUA  HETT  (born  in  New  York  City,  in  1736, 
where  he  died  in  1818),  was  the  son  of  the  elder  William 
Smith  (q.  v.).     He  was  a  sucesssful  lawyer  in  New  York  City 
prior  to  the  Revolution.     In  that  struggle  he  was  a  decided 
tory,  and  was  implicated  to  some  ex-  ^ 

tent  with  Major  Andre  in  connection    ^^  -  '^ 
with  the  treason  of  Benedict  Arnold. 
Arnold  and  Andre  passed  the  night 
together  at  his  residence  at  Haver- 
straw,   New    York.     Indeed,    Smith 
was  tried  for  complicity  in  the  affair 
by  a  military  tribunal,  but  was  ac- 
quitted.    He  was  kept  in  ward  for  a 
time,  but  escaped  to  New  York  City, 
then  occupied  by  the   British,  and 
upon  its  evacuation  went  to  England. 
Later  he  returned  to  the  United  States.     He  wrote  a  partisan  "  Authen- 
tic Narrative  of  the  Causes  that  Led  to  the  Death  of  Major  Andre  " 
(London  and  New  York,  1808  and  1809). 


jMITH,  WILLIAM  (born  in  Northamptonshire,  England,  Feb- 
ruary 2,  1655  ;  died  in  Brookhaven,  New  York,  February  18, 
1705),  was  one  of  the  earliest  chief -justices.  At  the  age  of 
twenty  he  was  appointed  governor  of  Tangiers — whence  the 
name  of  Tangier  Smith,  by  which  he  is  sometimes  called.  The  project 
of  forming  a  British  colony  there  being  abandoned,  he  returned  to 
England,  and  three  years  later,  during  Dongan's  governorship,  came  to 

'  In  thig  house,  the  residence  of  Joshua  Hett  Smith,  of  West  Point.  It  stands  on  what  is  now  Treason  Hill, 
Major  Aiidr<5  met  General  Arnold,  on  the  morninK  of  near  Haverstraw,  on  the  Hudson,  and  can  be  seen  from 
AuguBt  22,  1788,  and  arranged  the  plan  of  the  surrender     the  river. 


iiisrouY  (tK   riiK  incNcii  and  nwi  <»!•    new  youk  -179 

New  York,  wlicrc  he  is  siij)i)<)st'(l  to  liavc  ('ii<;:i^^('(l  in  lindf.  Within  a 
week  after  the  arrival  of  (lovei'iior  Sh)nghter  he  was  appointed  a  mem- 
ber of  tiie  eonncil.  Jle  was  also  jjut  on  tlu;  commission  of  oyer  and 
terminer  for  the  trial  of  Leisler  and  his  associates,  and  upon  tli(^  (crea- 
tion of  the  Supreme  Court  was  made  its  second  justice.  At  the  same 
time  he  was  appointed  judge  or  delegate  of  the  Prerogative  Court  of 
Suffolk  county. 

He  held  the  ofRce  of  chief-justice  throughout  the  administration  of 
Governor  Fletcher.  lie  was  supplanted  October  '.W,  IToo— Stei)lianus 
Van  Cortlandt  taking  his  place, — but  was  restored  on  November  25 
of  the  same  year.  The  following  January  he  gave  way  to  Abraham 
de  Peyster,  who  in  turn  was  succeeded  by  Attwood,  but  after  the  lat- 
ter's  flight  he  was  again  appointed  chief-justice  (June  9,  1702),  and  he 
continued  to  serve  until  April  of  the  next  year. 

He  was  a  resident  of  Brookhaven,  Suffolk  county,  where  he  acquired 
an  extensive  estate,  subsequently  erected  into  a  manor — Saint  George 
manor — by  patent  of  Governor  Fletcher  (lt)93),  whose  prodigal  grants 
of  public  lands  to  favored  persons  were  afterward  assailed  by  more 
than  one  general  assembly. 


jMITII,  WILLIAM  (born  in  Newport-Pagnel,  Buckinghamshire, 
England,  October  8,  1697  ;  died  in  New  York  City,  November 
22,  1769),  was  the  son  of  Thomas  Smith,  and  came  to  this 
country  with  his  father  and  two  brothers,  John  and  Thomas, 
arriving  in  New  Y'ork  City  August  17,  1715.  James  Alexander,  one  of 
the  most  prominent  lawyers  of  the  colony,  and  father  of  the  titular 
Earl  of  Stirling,  came  over  in  the  same  vessel.  He  was  graduated  at 
Y'ale  in  1719,  and  for  live  years  was  tutor  in  that  institution.'  He  was 
learned  in  the  sciences,  a  good  theologian,  and  as  a  linguist  proficient 
in  French,  Latin,  Greek  and  Hebrew.  Severing  his  connection  with 
Yale  College,  he  returned  to  New  Y'ork  City,  where  he  was  admitted  to 
the  bar  May  20,  1724.  He  soon  gained  recognition  and  acquired  a 
successful  practice.  His  eloquence  as  an  advocate  was  perhaps  his 
most  striking  characteristic.  According  to  his  son,  the  historian,  in  an 
election  contest  for  a  seat  in  the  New  Y'ork  assembly.  Smith's  oratory 
alone  won  the  contest  for  his  client,  his  effective  portrayal  of  the 
scene  of  the  crucifixion  leading  the  assembly  to  reject  all  the  votes  of 
its  Jewish  members. 

In  17r)l,  by  appointment  of  Governor  George  Clinton,  he  succeded 
Richard  Bradley  as  attorney-general  and  advocate-general  of  the 
colony,  and  served  one  year,  but  was  not  confirmed  by  the  home  au- 
thorities because  of  his  previous  prominence  in  prosecuting  cases 
against  the  government  under  Cosby.     He  also  held  the  office  of  re- 

•  He  declined  the  rector's  chair  in  Yal*  College  made  vacant  by  the  removal  of  Doctor  Cutler,  and  was  the 
first  lay  character  of  it  belonging  to  the  Colony  of  New  York. 


480  HISTOEY  OF  THE  BENCH   AND  BAR   OF  NE\7   YORK 

corder,  and  was  a  member  of  the  governor's  council  from  1753  to  1767, 
his  son,  William  Smith,  the  chief-justice  and  historian,  succeeding  him 
in  that  position.  As  councillor  he  attended  the  colonial  congress  held 
at  Albany  in  June,  1754,  and  was  the  x^ew  York  member  of  the  com- 
mittee to  draft  the  plan  of  union.  He  was  himself  an  eloquent  ad- 
vocate of  the  scheme  of  union  of  the  American  colonies.  He  also 
served  in  June,  1754,  as  commissioner  to  determine  the  boundary 
between  Massachusetts  and  New  York.  In  1760  he  refused  the  ap- 
pointment as  chief-]' ustice  of  the  Supreme  Court  on  a  technicality  in- 
volving a  principle  respecting  the  dignity  of  the  court  and  the  extent 
of  royal  interference.  In  1763  he  was  api^ointed  an  associate- justice  of 
the  same  tribunal,  and  so  continued  until  his  death,  in  1769.  In  an 
obituary  notice  following  his  decease  the  New  Y^'ork  Gazette  character- 
ized him  as  "a  gentleman  of  great  erudition,  the  most  eloquent 
speaker  in  the  province,  and  a  zealous  and  inflexible  friend  to  the 
cause  of  religion  and  liberty. " 

It  now  remains  to  speak  of  Judge  Smith's  pi^e-eminent  services  in 
establishing  the  right  of  free  speech  and  a  free  press.  The  two  great 
leaders  of  the  colonial  bar  of  that  day,  Smith  and  James  Alexander, 
with  Lewis  Morris,  the  eminent  chief-justice,  formed  a  distinguished 
triumvirate  whose  unceasing  endeavors  finally  secured  the  triumph  of 
these  principles. 

The  case  between  Governor  Cosby  and  Rip  Van  Dam  inaugurated 
the  contest.  Although  Van  Dam,  as  senior  councillor,  had  served  a 
year  as  acting-governor  between  the  death  of  Montgonierie  and  the 
arrival  of  Cosby,  he  found  that  the  latter  came  with  authorization  to 
appropriate  half  the  year's  salary  to  himself.  Yan  Dam  refused  to  re- 
linquish it,  and  Cosby  began  a  suit  against  him.  The  Governor 
proposed  to  erect  a  chancery  court  to  try  the  case — a  thing  always 
objectionable  to  the  popular  party,  which  could  not  complacently 
tolerate  a  system  under  which  the  executive,  representing  the  king, 
became  interpreter  of  the  law  as  well  as  its  executor.  Cosby  did  not, 
of  course,  go  to  the  extreme  of  presiding  as  chancellor  in  the  trial 
of  his  own  suit,  but  constituted  James  De  Lancey,  Frederick  Philipse 
and  Chief-Justice  Morris,  of  the  Supreme  Court,  a  court  of  equity  to 
try  it.  William  Smith  and  James  Alexander  were  counsel  for  Van 
Dam.  They  struck  at  the  root  of  the  issue,  declaring  that  the  gov- 
ernor had  no  power  to  create  an  equity  court,  such  power  residing 
alone  in  parliament  or  the  legislature.  Mr.  Eugene  Lawrence  has  thus 
sketched  the  dramatic  features  connected  with  this  famous  case : 

The  suit  against  Van  Dam  was  to  be  ti'iecl  before  the  three  judges  as  an  ex- 
chequer court;  it  excited  an  intense  interest  among  the  people.  All  the  old  violence 
of  party  spirit  was  roused  by  this  attempt,  as  it  was  thought,  upon  their  liberties. 
The  old  men  who  may  have  seen  Leisler  and  Milborne  led  out  to  execution,  and 
who  had  never  forgotten  the  dreadful  scene;  the  young  men  who  chafed  under  the 
haughty  rule  of  the  English  officials  ;  the  Dutch  citizens  who  had  felt  the  scorn  of 


IllSIOUV    OK    IIIi:    IIKNCII    AM)    liAi:    t)K    SVAV    YOUK  481 

(lioir  corrupt  rulers  iuid  repaid  it;  llie  pre:>l).v(eriaiis  auil  other  dissenters  wImi  liad 
been  persecuted  and  pluiulen-d  l)y  the  episeo|)alian  >,'overnors,  and  probably  tlie 
<rivat  majority  of  tlie  peoi)h',  hH)ketl  upon  Kip  Van  Dani  as  only  the  new  victim  of  a 
foreifrn  tyranny.  For  twenty  years  a  member  of  tiio  council,  for  several  yeai-s  its 
senioi"  nuMuber,  its  recent  i)resident,  and  one  of  the  most  respected  membei-s  of  the 
community,  he  was  now  unjustly  accused  of  improperly  witholdiiifj  moneys,  and  pros- 
ecuted in  an  ill(>f;:il  court.  Van  Dam  wa.s  not  to  be  terrilied  by  tlu;  frowns  of  the 
governor  and  his  followers.  He  boldly  resisted,  and  was  tiot  easily  to  be  destroyed. 
....  It  would  be  useless  to  repeat  here  the  technical  argument  of  tlie  two  lawyers. 
They  boldly  denied  the  authority  of  the  i-oyal  council,  or  even  of  the  king  himself, 
without  the  consent  of  parliament,  to  legislate  for  New  York;  they  made,  in  fact,  an 
appeal  for  independence.  The  opposing  counsel  were  about  to  enter  into  the  merits 
of  the  case,  wiien,  to  the  sur])rise  of  Cosby  and  his  adherents,  the  chiof-justice, 
Morris,  interposed  and  delivered  a  decision  in  favor  of  the  plea  of  Van  Dam.  He 
held  with  Smith  and  Alexaiuler  that  the  governor  had  no  power  to  create  an  equity 
court.  His  two  colleagues,  De  Lancey  and  Philipse,  astonished  at  his  boldness, 
gave  opposing  opinions  defeiuling  the  governor ;  they  overruled  even  the  chief-justice. 
But  no  final  decision  was  ever  reached  in  this  eventful  case.  The  Court  of  Ex- 
chequer, as  constituted  by  Cosby,  never  met  again.  The  public  opinion  set  too 
strongly  against  it.  Van  Dam  was  the  victor  in  the  contest  against  the  court  party, 
and  his  bold  resistance  led  to  a  new  sense  of  colonial  rights— perhaps  to  final 
independence. ' 

In  retaliation  Cosby  ceased  to  summon  James  Alexander  to  his 
council  and  removed  Morris,  who  for  twenty  years  had  been  chief-jus- 
tice, appointing  De  Lancey  in  his  place.    This  arbitrary  course 

augmented  the  excitement  which  already  existed  and  divided  the  province  into 

two  violent  factions Tlie  right  of  the  Supreme  Court  to  exercise  jurisdiction 

in  equity  was  brought  before  the  general  assembly  at  its  next  session.  Petitions 
were  presented  for  the  repeal  of  the  Court  of  Exchequer  as  a  branch  of  the  Supreme 
Court,  and  for  the  general  re-establishment  of  all  the  courts  by  an  act  of  the  assem- 
bly. The  governor  had  a  majority,  but  the  opposition  was  so  formidable  from  the 
men  that  composed  it  and  the  strength  derived  from  the  popular  support,  that  a 
resolution  was  agreed  to  inviting  the  two  most  prominent  law^-ers  of  the  respective 
parties  to  argue  the  question  before  the  bar  of  the  house.  Mr.  Smith,  the  father  of 
the  historian,  was  heard  on  the  democratic  side,  and  Mr.  Murray,  the  oldest  member 
of  the  bar,  in  reply — in  an  argument  evincing  on  both  sides  a  great  deal  of  ability 
and  an  amount  of  research  and  antiquarian  information  that  was  scarcely  to  have 
been  expected.-' 

Smith,  Alexander  and  Morris  now  became  the  distinguished  lead- 
ers of  the  popular  party,  which  incessantly  opposed  the  pretensions  of 
the  governor.  Bradford's  Gazette  being  the  servile  organ  of  the  latter, 
a  rival  newspaper,  the  New  York  Weekly  Journal,  was  started,  with 
John  Peter  Zenger  as  editor.  The  tirst  number  was  issued  November 
12,  1733. 

The  chief  purpose  of  the  paper  lay  in  its  bitter  attacks  upon  Cosby's  administra- 
tion. No  point  of  assault  was  neglected,  no  personality  or  satire  spared.  Morris, 
Alexander,  Smith  and  others  had  formed  a  club  that  met  weekly,  and  here  were  no 
doubt  arranged  and  suggested  the  essays,  the  squibs,  the  verses,  the  parodies,  and 

•"Memorial  History  of  New   York,"  Vol.   ii.,  pp.         '■Judge  Daly's  "Historical  Sketch  of  the  Judicial 
21T-21S.  Tribunals  of  New  York,"  p.  43. 


482       HISTORY  OF  THE  BENCH  AND  BAR  OF  NEW  YORK 

sliarp  rejoinders  to  the  lieavy  and  often  ill-considered  replies  that  were  sometimes 
inserted  in  the  Gazette.  Many  of  the  leading  essays  in  the  Journal  are  written  in 
a  clear,  correct  style,  full  of  force  and  novelty.  Their  chief  aim  was  to  defend  the 
most  liberal  view  of  the  liberty  of  the  press.  The  ^vriters  felt,  no  doubt,  that  they 
lived  under  a  despotism  that  might,  at  any  moment,  strike  them  with  its  sharp  pen- 
alties. They  used  all  the  resources  of  reason  to  rouse  the  people  to  resistance.  Their 
argument  is  unanswerable,  because  true.  But  its  unrivalled  power  lay  in  its  nov- 
elty. Few  in  1730  had  even  heard  of  the  liberty  of  the  press.  Fewer  understood  its 
meaning.  It  was  many  years  befoi*e  Junius  was  to  complete  his  reputation  by  his 
powerful  enunciation  of  the  same  truth.  It  was  so  long  since  Milton  had  vrritten 
his  great  period  on  Truth's  certain  victory,  that  it  was  forgotten.  In  the  days  of 
Swift  and  Addison  few  read  Milton's  prose.  But  week  after  week,  in  grave  and 
stately  sentences,  the  New  York  writers  kept  up  one  long,  loud  cry,  "The  Liberty 
of  the  Press ! "  The  effect  was  startling.  It  spread  from  colony  to  colony ;  a  news- 
paper was  soon  established  in  Charleston  that  took  up  the  cry  ;  Boston  and  Phila- 
delphia watched  attentively  the  struggle  in  Mew  York,  and  we  may  trace  in  the 
leading  articles  of  the  New  York  Weekly  Journal  of  1733  and  1734  many  of  the 
ideas  and  sometimes  the  language  itseK  that  Otis,  Franklin  and  Adams  made  use  of 
in  defending  and  securing  the  liberties  of  the  continent. ' 

The  sequel  is  well  known.  Certain  issues  of  the  Journal  were  con- 
signed by  the  council  to  be  burned  "  near  the  pillory  by  the  hands  of 
the  common  hangman,"  while  Zenger  was  arrested,  imprisoned  and 
brought  to  trial  for  libel.  But  spite  of  De  Lancey's  efforts  the  grand 
jury  refused  to  indict  Zenger.  Instead  of  being  released,  however,  the 
attorney-general  preferred  new  charges  against  him.  Smith  and  Al- 
exander came  once  more  to  the  front  as  Zenger's  counsel.  Tliey  boldly 
attacked  the  validity  of  the  court,  declaring  that  Cosby's  removal  of 
Chief-Justice  Morris  without  consulting  his  council  was  illegal,  and 
that  the  commissions  of  Judges  De  Lancey  and  Philipse  were  invalid, 
the  appointments  being  "  during  pleasure,"  instead  of  during  "  good 
behavior."  (Smith's  refusal  of  the  chief -justiceship  in  1700  was  be- 
cause his  commission  read  "  during  pleasure,"  thus  resting  the  stabil- 
ity of  judicial  institutions  upon  the  good  pleasure  of  the  ai)i)ointing 
power,  which  he  would  not  allow.)  The  result  of  the  bold  stand  of 
Smith  and  Alexander  was  that  both  were  expelled  from  the  New  York 
bar  by  Chief-Justice  De  Lancey.  But  their  place  was  taken  at  Zen- 
ger's trial  by  Andrew  Hamilton,  leader  of  the  Philadelphia  bar.  He 
was  instructed  as  to  the  merits  of  the  case  by  his  deposed  New  York 
colleagues,  and  a4;  the  trial  made  one  of  the  most  brilliant  and  power- 
ful addresses  in  a  great  case  recorded  in  the  annals  of  legal  practice  on 
this  continent. 

Zenger  was  acquitted.  Thus  "  New  York,  we  may  well  remember, 
was  the  first  of  the  cities  to  assert  the  liberty  of  the  press  when,  all 
over  Europe  and  America,  thought  was  chained  and  intellect  impris- 
oned." The  entire  credit  of  the  great  achievement,  momentous  in  the 
history  of  the  world,  we  may  ascribe  to  the  renuirkable  courage  and 
ability  of  four  great  colonial  lawyers— William  Smith,  James  Alexan- 

llistory  of  New  York,"  Vol.  ii.,  pp.  227,  228. 


)K    lllK   iti:N<  II    \M>   i;\i;   (H.    m;\\    \i}\iK  IS!} 


(lor,  Lowis  Mollis  :iii(I  AikIitw  llninilloii.  Sniitli  uikI  Alfxiiiidrr,  u  lio 
luul  l)(»en  expcllccl  from  tlio  l)ar  in  a  l)0()tl('ss  iilt<'in|)t  to  friistialc  jus- 
tice, vv('r(M)f  course  siil)se',]ucntly  restored  to  jjiactice,  and  tliroiiirlioiit. 
tlieir  careei's  rtMuained  the  acknowledn-od  and  honored  Iead«>rs  of  the 
legal  profession. 


|MITn,  WILLIAM  (born  in  New  York  City,  June  25,  1728; 
died  in  Quebec,  Canada,  December  ;},  17!»3),  was  the  son  of 
the  preceding,  lie  is  generally  spoken  of  as  "the  historian," 
both  in  recognition  of  his  famous  work,  the  lii'st  history  of 
New  York,  and  also  to  distinguish  him  from  his  eminent  father  and 
from  the  William  Smith  known  as  "Tangier"  Smith,  who  was  chief- 
justice  of  the  colonial  Supreme  Court  of  New  York  at  a  much  earlier 
period. 

The  historian  was  educated  at  Yale,  like  his  father,  being  gi-adu- 
ated  in  1745,  studied  law,  was  admitted  to  the  bar  in  New  York  City 
in  October,  175U,  and  was  soon  in  the  enjoyment  of  a  successful  and 
extensive  professional  business.  He  began  jiractice  in  partnership 
with  \yilliam  Livingston,  afterward  governor  of  New  Jersey,  and  with 
him  was  appointed  by  the  New  York  assembly  to  revise  the  laws — a 
task  which  Chief- Justice  Horsmanden  had  undertaken  but  left  uncom- 
pleted. This  important  labor  Smith  and  Livingston  creditably  per- 
formed, the  first  volume  of  their  revision  being  published  in  1752  and 
the  second  in  1702. 

Judge  Smith  became  a  member  of  the  king's  council  in  1709.  He 
greatly  deplored  the  Revolution,  and  endeavored  to  remain  neutral, 
but  of  course  found  it  a  difficult  and  trying  position.  His  own  plan 
for  the  settlement  of  the  differences  which  had  arisen  was  a  scheme  of 
colonial  representation  in  ])arliament — the  general  idea  of  which  Ben- 
jamin Franklin  also  advocated.  When  Washington  entered  New  York 
City  in  April,  1770,  Mr.  Smith  offered  him  his  city  residence  and  retii'ed 
to  his  country-seat  at  Haverstraw.  In  June  of  the  following  year  he 
was  summoned  before  the  committee  of  safety  at  Kingston,  which  in- 
quired concerning  his  sentiments.  When  asked  if  he  considered  him- 
self a  subject  of  the  independent  states  of  America,  he  replied  that  he 
did  not  consider  himself  discharged  from  his  oath  of  fidelity  to  the 
crown  of  Great  Britain.  His  liberty  was  accordingly  confined  to  the 
bounds  of  Livingston  manor. 

By  1778  he  appears  to  have  come  to  the  settled  conclusion  that 
his  oath  to  the  crown  was  inviolate,  and  when  New  York  City  was  in 
the  hands  of  the  British  he  obeyed  the  summons  to  return  there,  and 
subsequently  accepted  a  commission  from  the  king  as  chief  justice  of 
New  York.  This  office  he  held  until  the  evacuation  of  New  York  by 
the  British  in  1783,  when  he  accompanied  Sir  Guy  Carleton  to  Eng- 
land-   He  was  afterward  appointed  chief-justice  of  Canada,  held  that 


484  HISTORY   OF   THE  BENCH   AND   BAR   OF   NEW   YORK 

position  until  his  death,  and  was  "  literally  the  father  of  the  reformed 
judiciary  of  that  province."    He  has  been  thus  characterized  : 

He  was  an  upright  and  just  judge,  and,  among  the  minor  changes  that  he 
instituted  in  the  courts,  estabhshed  the  office  of  constable,  whose  duties  before  his 
administration  had  devolved  upon  the  soldiers.  He  was  intimate  with  many  emi- 
nent English  statesmen He  was  an  eloquent  speaker,  and  many  of  his  law 

opinions  were  collected  and  recorded  by  George  Chalmers  in  his  "  Opinions  on  In- 
teresting Subjects  Arising  from  American  Independence  (1784)."  ' 

Judge  Smith  published  his  "  History  of  the  Province  of  New  York 
from  its  Earliest  Settlement  to  1732"  in  the  year  1757,  at  the  same 
time  issuing  a  pamphlet  in  defence  of  Governor  Shirley's  military 
career.  He  was  then  but  thirty  years  of  age,  but  his  work  has  been 
the  inexhaustible  resource  of  historians  from  that  day  to  this.  Another 
volume,  carrying  the  history  through  the  Revolution,  at  his  request 
was  not  to  be  made  public  until  some  time  had  elapsed  after  his  death. 
Both  volumes  were  published  by  the  New  York  Historical  Society  in 
1829. 


FENCER,  AMBROSE  (born  in  Salisbury,  Connecticut,  De- 
cember 13,  1765  ;  died  in  Lyons,  New  York,  March  13,  1848), 
attended  Yale  and  Harvard  colleges,  being  graduated  from  the 
latter  in  1783,  and  studied  law  with  John  Canfield,  of  Sharon, 
Connecticut.  He  settled  in  Hudson,  New  York,  and  soon  was  actively 
concerned  in  politics.  He  was  city  clerk  of  Hudson  in  1786  ;  a  mem- 
ber of  the  assembly  in  1793  ;  a  member  of  the  state  senate  from  1795 
to  1802 ;  assistant-attorney-general  of  Columbia  and  Rensselaer  counties 
in  1796  ;  from  1802  to  1804  attorney-general  of  the  State  of  New  York ; 
a  justice  of  the  Supreme  Court  of  the  state  from  1804  to  1823,  and 
after  1819  chief-justice  ;  a  member  of  a  committee  with  Peter  J,  Munro 
by  legislative  appointment  in  1808  to  suggest  reforms  in  the  chancery 
system  of  the  state  ;  a  presidential  elector  in  1809  ;  a  prominent  mem- 
ber of  the  constitutional  convention  of  1821  ;  mayor  of  Albany  from 
1824  to  1826 ;  a  member  of  congress  from  1829  to  1831,  and  chairman 
of  the  whig  national  convention  at  Baltimore  in  1844. 

He  was  author  of  the  bill  abolishing  cai)ital  punishment  in  the 
State  of  New  York  in  all  cases  except  treason  and  murder,  and  secured 
the  establishment  of  the  state  prison  at  Sing  Sing.  In  Congress  he 
contended  against  the  injustice  done  to  the  Cherokee  Indian  nation. 
He  opposed  an  elective  judiciary  in  this  state.  He  was  learned  in  tlie 
law,  and  especially  in  equity  jurisprudence.  Many  able  decisions  de- 
livered by  him  are  contained  in  the  New  York  Supreme  Court  Reports 
from  1799  to  1803  and  from  1808  to  1812,  and  in  the  New  York  Chan- 
cery Reports  from  1814  to  1823. 

'  Appleton's  "  Cyclopsudia  of  American  Biograpliy,"  Vol  v.,  p.  501. 


IIISTOKV    OK    IIIK    lii;.N(  II    .\.M>    ItAK    lU-     NKW   \Ol:K  485 

^^l'KN(^E]i,  CIIAKLKS  S.  (horn  in  Illiiicji,  New  York,  in  1827; 
(lied  in  New  York  City,  Au-iiist  11,  1887),  was  k'':«1"i:»<'''1  !»t 
Wcsleynn  University,  Middlctown,  (/'onnecticnt,  \v:is;idinitt«Ml 
to  the  bar,  and  heu^an  jjiactice  at  Klinira,  hut  soon  removed 
to  New  York  City,  where  he  <;ra(hjally  gained  a  lar^je  jn-actice  in  tlie 
ciiniinal  courts.  He  was  associated,  at  dilTerent  times,  with  Philip 
.Jordan,  James  T.  Brady  and  John  J.  O'Brien.  He  was  elected  to  the 
assembly  as  a  republican  in  1800  and  1801,  and  a«,^ain  in  1873.  In  1884 
he  was  a  candidate  for  district-attorney,  but  was  defeated  by  Randolph 
B.  Martine. 


IPENCEK,  JOHN  CANFIELD  (born  in  Hudson,  Columbia 
county,  New  York,  January  0,  1788  ;  died  in  Albany,  May 
20,  1854),  was  a  son  of  Chief-Justice  Ambrose  Spencer.  He 
was  trained  from  boyhood  for  the  bar,  and  after  his  gradua- 
tion from  Union  College  pursued  his  legal  studies  in  his  father's 
office.  He  was  private  secretary  to  Governor  Tompkins.  At  the  age 
of  twenty- three  he  was  admitted  to  the  bar,  and  removing  to  Canan- 
daigua  he  soon  became  there  both  a  professional  and  a  political  leader. 
In  1815  he  was  appointed  district-attorney  for  the  district  embracing 
the  live  Avestern  counties  of  the  state.  Elected  to  congress,  he  was 
conspicuous  in  that  body  for  his  strong  opposition  to  the  United  States 
bank.  He  also  served  in  the  assembly,  of  which  he  became  speaker, 
and  in  the  state  senate  and  Court  of  Errors. 

In  1827  he  was  appointed  a  commissioner  to  revise  the  statutes  of 
New  Y^ork,  in  place  of  Henry  Wheaton,  resigned.  He  contributed 
valuably  to  the  work  begun  by  his  associates,  Benjamin  F.  Butler  and 
John  Duer.  In  1829  he  was  designated  by  Governor  Van  Buren  as 
prosecutor  of  the  persons  charged  with  abducting  William  Morgan. 
He  was  elected  secretary  of  state  of  New  York  in  1837,  and  he  held  the 
portfolios  of  secretary  of  war  and  secretary  of  the  treasury  in  the 
cabinets  of  Harrison  and  Tyler.  President  Tyler  nominated  him  for 
associate-justice  of  the  United  States  Supreme  Court,  but  owing  to 
factional  considerations  the  senate  refused  to  confirm  him.  Afterward 
he  devoted  himself  exclusively  to  professional  practice. 

John  C.  Spencer  was  one  of  the  greatest  lawyers  New  Y^ork  state 
has  produced.  Tlie  general  judgment  of  the  profession  respecting  him, 
says  Mr.  William  Allen  Butler,  in  his  monograph  on  "  The  Revision 
and  the  Revisers,"  "  was  snmmed  up  in  the  brief  sentence  of  a 
journalist  who  characterized  his  '  singular  ca])acity  to  labor  without 
fatigue  as  only  equalled  by  the  extent  and  variety  of  the  professional 
services  he  performed.' " 


486 


HISTORY  OF  THE  BENCH  AND  BAR  OF  NEW  YORK 


PENCER,  JOSHUA  A.  (born  in  Great  BarringtQn,  Massa- 
chusetts, May  13,  1790  ;  died  in  Utica,  New  York,  April  28, 
1857),  was  educated  at  the  public  school  and  academy  of  his 
vicinity,  served  in  the  war  of  1812,  and  at  twenty-five,  after 
having  read  law  in  the  office  of  his  elder  brother,  Ichabod  Spencer,  at 
Lenox,  Massachusetts,  was  admitted  to  the  bar.  He  practiced  several 
years  at  Lenox,  removing  to  Utica  in  1828.  He  there  formed  a  partner- 
ship with  William  H.  Maynard,  and  later  was  associated  with  Francis 
Kernan.  In  1845  he  was  elected  to  the  state  senate.  In  1848  he  was 
mayor  of  Utica,  and  under  Hariison  and  Tyler  he  was  United  States 
district-attorney  for  the  northern  district  of  New  York.  He  was  one 
of  the  recognized  leaders  of  the  Utica  bar. 


TEYENS,  JAMES  ALEXANDER  (born  in  New  Y'ork  City, 
January  29,  1790  ;  died  in  Hoboken,  New  Jersey,  October  7, 
1873),  was  the  son  of  John  Stevens,  the  inventor.  He  was 
graduated  from  Columbia  College  in  1808,  and  admitted  to 
the  New  York  bar  in  1811.  He  took  an  important  part  in  the  great 
legal  contest  of  Ogden  vs.  Gibbons,  which  resulted  in  the  abolition  of 
the  Livingston-Fulton  steamboat  monopolj^  and  in  which  it  was 
decided  that  navigable  waters  were  under  federal  instead  of  state 
jurisdiction. 


TEWART,  ALVAN  (born  in  South  Granville,  Washington 
county.  New  York,  September  1, 1790 ;  died  in  New  York  Citj^, 
May  1,  1849),  educated  himself,  mainly  by  teaching,  attended 
Burlington  College  (Vermont),  read  law,  and  began  practice 
in  Cherry  Valley,  New  York.  He  soon  gained  an  extended  reputation 
both  for  his  professional  attainments  and  as  an  aggressive  supporter  of 
various  principles.  He  advocated  protective  tariffs,  public  education 
and  liberal  expenditures  for  public  improvements,  and  from  about  the 
year  1832,  when  he  removed  to  Utica,  he  was  an  earnest  champion  of 
the  causes  of  abolition  and  temperance  reform.  He  maintained  that 
congress  had  constitutional  authority  to  abolish  slavery,  and  was  very 
instrumental  in  creating  the  abolition  party  which  eventually  held  the 
balance  of  power  in  the  State  of  New  York.  He  was  the  candidate  of 
this  party  for  governor. 


TILWELL,  SILAS  MOORE  (born  in  New  York  City,  Jane  6, 
1800  ;  died  there.  May  16,  1881),  was  the  son  of  a  revolu- 
tionary soldier,  and  a  descendant  of  Nicholas  Coke  (brother 
of  the  regicide,  John  Coke),  who  assumed  the  name  of  Stilwell 
ui)on  coming  to  the  colonies.  Mr.  Stilwell  received  an  academic  edu- 
cation ;  engaged  in  mercantile  pursuits  in  New  York  City  ;  removed  to 


IIIS'IOKY    OK    TIIK    HKNCII    AM)    HAU    OK    M:\V    VoIIK  487 

'r(MHi(\ss('(' and  hccainc  a  iiuMnhcr  of  its  Icji^nsladirc  in  IS22;  (licnct!  to 
N'ii^iinia,  where  he  l)e(;aine  clerk  of  Tazewell  county,  a  nietnher  of  the 
legislature,  and  wa.s  admitted  to  the  bar  ;  in  1828  i-eturned  to  New 
York  City,  and  from  182!>  to  1838  was  a  member  of  the  legislature  of 
this  state.  He  was  candidate  for  liiMitenant-governor  when  William 
11.  Seward  ran  for  governor  iu  1834  ;  was  chairman  of  the  board  of 
aldermen  of  New  York  City  in  1835  and  a(!ting  mayor  at  the  time  of 
the  great  tire  of  that  year  ;  declined  a  cabinet  appointment  offered  him 
by  President  Harrison  ;  became  United  States  marshal  for  the  southem 
district  of  New  York,  and  accepted  a  special  mission  to  the  Hague 
He  was  author  of  the  so-called  "  Stilwell  act,"  abolishing  imprison- 
ment for  debt  in  New  York  state,  as  also  of  the  bankrujjt  act,  national 
banking  act  and  system  of  organized  credits  of  1863.  Between  1860 
and  1872,  under  the  name  of  "Jonathan  Oldbuck,"  he  was  a  frequent 
contributor  to  the  New  York  Herald.  He  wrote  several  volumes  on 
financial  subjects. 

TORRS,  HENRY  RANDOLPH  (born  in  Middletown,  Connec- 
ticut, September  3,  1787 ;  died  in  New  Haven,  Connecticut, 
July  29.  1837),  was  graduated  from  Yale  College  in  1804, 
admitted  to  the  bar  in  1807,  and  subsequently  became  judge 
of  Oneida  county.  New  York,  serving  five  years.  He  was  in  congress 
continuously  from  1819  to  1831,  where  he  attained  high  rank  as  an 
eloquent  debater.  At  thie  close  of  his  congressional  service  he  located 
in  New  Y^'ork  City,  and  became  recognized  as  one  of  the  leading  prac- 
titioners.   

]TOUGHTON,  ED^YIN  WALLACE  (born  in  Springfield,  Ver- 
mont, May  1,  1818  ;  died  in  New  York  City,  January  7, 
1882),  came  to  New  York  City  in  1836,  studied  law,  and  was 
admitted  to  the  bar  in  1830.  He  achieved  a  conspicuous 
place  in  the  profession,  and  appeared  in  many  important  cases,  includ- 
ing the  Goodyear  rubber  cases,  the  suit  of  Ross  Winans  against  the 
Erie  railroad  and  the  receivership  cases  of  the  same  road  in  the  United 
States  courts  in  1868.  He  was  counsel  for  William  M.  Tweed  for  a 
time,  when  the  attack  upon  the  notorious  boss  first  began,  and  was 
counsel  for  the  stockholders  of  the  Emma  mine.  He  ably  advocated 
the  claim  of  General  Hayes  before  the  electoral  commission,  and  in 
1877  was  appointed  minister  to  Russia.  He  returned  to  the  United 
States  in  1879.  

^^pITRONG,  GEORGE  TEMPLETON  (born  in  New  Y'ork  City, 
l^^l*.  February  26,  1820;  died  there,  July  2,  1875),  was  the  son  of 
(J^^jfl  George  Washington  Strong,  a  well-known  lawyer  of  New 
York  City,  and  grandson  of  Judge  Selah  Strong.  He  was 
graduated  from  Columbia  College  in  1838,  and  became  a  successful 


488  HISTORY    OF   THE   BEXCH   AND   BAR   OF   NEAV    YORK 

practitioner  in  New  York  City.  He  was  a  member  of  the  executive 
committee  and  treasurer  of  tlie  United  States  sanitary  commission 
durin"-  the  civil  war. 


TRONG,  SELAH  BREWSTER  (born  in  Setauket)  Long  Island, 
December  25,  1737  ;  died  there,  November  29,  1872),  was  a 
son  of  Thomas  S.  Strong,  a  Judge  of  the  Common  Pleas  Court 
of  Suffolk  county.  In  1811  he  was  graduated  at  Yale,  and  in 
1814  Avas  admitted  to  the  bar.  From  1821  to  1841  he  was  district- 
attorney  of  Suffolk  county,  from  1843  to  1845  a  member  of  congress, 
and  from  1847  to  1860  a  judge  of  the  Supreme  Court  of  New  York, 
from  which  bench  he  delivered  very  able  opinions.  He  sat  in  the 
constitutional  convention  of  1867. 


TRONG,  THERON  RUDD  (born  in  Salisbury,  Connecticut, 
November  7,  1802  ;  died  in  New  York  City,  May  15,  1873),  was 
the  son  of  Martin  Strong,  county  judge  and  a  member  of  the 
Connecticut  legislature.  With  him  the  son  studied  law,  and 
in  1826  was  admitted  to  the  bar  in  Wayne  county,  New  Y^ork,  whither 
the  family  had  removed.  He  began  practice  in  Palmyra,  New  Y'ork  ; 
was  district-attorney  of  Wayne  county  from  1834  to  1839;  a  member  of 
congress  from  1839  to  1841 ;  a  member  of  the  legislature  in  1842,  and 
from  1852  to  1860  was  a  justice  of  the  Supreme  Court,  and  served  a  year 
in  the  Court  of  Appeals.  A  large  proportion  of  his  opinions  were  re- 
ported, his  record  in  this  respect  ranking  him  next  to  Judge  Hiram 
Denio.  After  his  retirement  Judge  Strong  resumed  practice  in  Roch- 
ester, and  in  1867  removed  to  New  York  City,  where  he  acquired  a 
large  business  and  frequently  acted  as  referee. 


ULLIVAN,  ALGERNON  SYDNEY''  (born  at  Madison,  In- 
diana, April  5,  1826  ;  died  in  New  Y^ork  City,  December  4, 
1887),  was  the  son  of  Judge  Jeremiah  Sullivan,  of  Indiana, 
and  his  wife,  Charlotte  Kudesel  Cutler,  of  an  old  Virginia 
family.  The  family  of  Sullivan  is  one  of  the  interesting  septs  of  the 
ancient  Irish  nobility,  tracing  its  descent  in  unbroken  line  from  a 
remote  antiquity.'  The  following  account  of  the  more  immediate 
ancestors  of  Mr.  Sullivan  is  extracted  from  Burke  : 


>  According  to  Burke  it ''  deduces  its  descent  from 
Oliol  Olliini,  King  of  Muneter,  who  reigned  a.  d.  135, 
and  whose  lineage  the  Hibernian  chronicles  trace  from 
Hebcr  Fionn,  one  of  the  sons  of  Milesins"  ("  Landed 
Gentry,"  8th  Ed.,  London,  l(-94).  Of  the  early  history 
of  the  Sullivana  of  County  Cork -the  family  of  Mr.  Sul 
livan  of  New  York — O'Hart  ("  Irish  Pedigrees,"  1st 
Ser.,  Dublin,  18T6,  p.  225)  gives  this  account:  "  In 
Cork,  the  following  have  been  the  Irish  chiefs  and 
clans:  1.  The  O'Siillivans  had  the  ancient  territory  of 
Beara,  now  the  baronies  of  Beare  and  Bantry  in  the 


County  Cork,  and  were  called  O'SuUivau  Beara,  and 
styled  princes  of  Beara.  Another  brunch  of  the  family, 
called  O'Sullivan  Mor,  were  lords  of  Uunkerron,  and 
possessed  the  barony  of  Dunkerron,  in  the  County 
Kerry,  and  their  chief  seat  was  the  castle  of  Dunkerron, 
near  the  river  Kenmare.  A  third  branch  of  the  O'Siilli- 
vans were  chiefs  of  Knockraffan,  in  Tipperary.  The 
O'Sullivans  ....  took  their  name  from  Suileabhan 
[sometimes  written  "  Sulevan";  O'SiiUlvan  means  "  sons 
of  Sullivan  "],  one  of  their  chiefs  in  the  tenth  century. 
In  the  reign  of  James  I.,  their  extensive  possessions 


inSTOUY    OK   TIIK    HKNCII    AND    HAK    OK    N  K\V    T(ii:K  4H0 

Daniel  O'Stillivaii,  a  lineal  (lescendant  of  llie  kin;,"«>f  Munsler.  .Iinpped  liie  prc- 
tix  "()"  from  his  surname,  lie  niairie<l  Mar;,'aret  TucUer,  of  County  Keri-y,  and 
dyinfj  in  1()S2,  lefl  a  son,  Darby  Sullivan,  Ks(i.  Th(>  liillei'  married  Joanna  Taylor, 
of  Kilbolano  Castle,  and  died  in  1737,  leaving?  three  sons,  Jerome,  William  and 
James.  Of  these,  William  was  born  September  21),  172!),  and  married,  February  15, 
17(i.'5,  Mary,  dau;;h(er  of  Honorable  Thomas  Morg-ell,  of  Mount  Morgell,  County 
Limericlv."    He  died  Krel)ruary  22,   1795. 

This  William  Sullivan,  whose  seat  was  Tullilea.se  House,  Cliarleville,  County 
Cork,  was  the  grandfather  of  Thomas  Lyttleton  Sullivan,  who  came  from  Cliarle- 
ville to  Augusta  county,  Virginia,  in  March,  1791. 

The  latter  married,  in  Virginia,  Margaret  Irwin,  a  lady  of  Scotch 
descent.  Their  only  child,  Honorable  Jeremiah  Sidlivau,  wa.s  edn- 
cated  at  William  and  Mary  College,  served  as  a  volunteer  .soldier 
dniing  the  war  of  181  :i,  and  upon  the  return  of  peace  declined  a  com- 
mission in  the  United  States  army  in  order  to  study  law.  He  was 
admitttnl  to  the  bar  in  181(>,  and,  having  selected  Madison,  Indiana,  as 
his  future  home,  removed  to  that  place  the  following  year  with  his 
parents  and  young  wife,  Charlotte  Rudesel  Cutler.  He  became  one  of 
the  most  prominent  legal  figures  in  Indiana,  and  for  many  years  was  a 
justice  of  the  Sui)renu^  Court,  lie  was  "  a  learned  and  able  judge,  to 
whom  Indiana  will  ever  remain  indebted  for  his  services  in  laying  the 
firm  foundation  of  its  jurisprudence." 

Algernon  Sydney  Sullivan  was  the  second  son  in  a  family  of  eleven. 
He  was  carefully  educated  at  home,  and  attended  college  at  Hanover, 
Indiana,  and  at  the  Miami  University  in  Ohio,  from  wdiich  he  graduated 
in  18-1:5.  The  question  of  appropriating  funds  for  the  establishment  of 
an  adequate  public  school  system  having  been  made  a  political  issue  in 
Indiana,  immediately  after  liis  graduation  from  college,  at  the  age  of 
tw-enty,  Mr.  Sullivan  threw  himself  into  this  canvass,  and  stumped  the 
state  in  favor  of  the  school  system,  gaining  by  his  eloquence  the  sobri- 
quet of  "  the  young  Demosthenes."  Later  he  studied  law,  was  admitted 
to  the  bar,  and,  removing  to  Cincinnati  in  1849,  began  the  practice  of 
his  profession.  In  that  city  he  rose  with  remarkable  rapidity  to  dis- 
tinction in  professional  and  private  life.  Although  so  young  a  lawyer, 
he  was  selected,  in  1851,  by  the  city  authorities  of  Cincinnati,  to  deliver 
the  address  of  welcome  upon  the  occasion  of  the  visit  of  Kossuth,  the 
Hungarian  patriot.  When  the  collapse  of  the  values  of  his  invest- 
ments in  property  in  the  northwestern  states  released  his  interests  in 
that  section  and  led  to  his  removal  to  New  York  City,  in  Ma}',  1857, 
his  legal  abilities  and  social  brilliancy  instantly  secured  for  him  the 
same  professional  recognition  and  social  honors  he  had  enjoyed  in  Cin 
cinnati.  The  year  after  taking  up  his  residence  in  New  York  he  was 
selected  one  of  the  members  of  the  committee  which  escorted  the 
remains  of  President  Monroe  to  Richmond,  Virginia.    In  1871  he  was 

were  confiscated  in  consequence  of  their  adherence  to  where  many  of  them  were  distinguished  officers  in  the 
the  earls  of  Desmond  and  Tyrone  in  the  Elizabethan  Spanish  service,  and  had  the  title  of  counts  of  Bear- 
wars,  and  the  heads  of  the  family  retired  to  Spain,     haven." 


490  HISTORY   OF  THE  BENCH  AND   BAR   OF  NEW   YORK 

chosen  to  deliver  the  welcoming  address  to  Grand  Duke  Alexis,  of 
Russia. 

Mr.  Sullivan's  private  law  practice  was  interrupted  by  his  public 
service  as  assistant-district-attorney  of  the  city  during  the  three  years 
1870-73,  and  as  public  administrator  for  ten  years  from  1875  to  18S5. 
It  was  also  interrupted  at  all  times  by  appeals  for  gratuitous  service 
which  his  generous  nature  never  could  resist.  The  large  corporations 
desiring  his  brilliant  services  again  and  again  found  they  could  not  be 
secured  because  his  energies  were  engrossed  by  his  devotion  to  poor 
and  unknown  clients,  whose  causes  he  championed  without  hope  of  any 
remuneration  save  the  approval  of  a  good  conscience.  The  extent  to 
which  he  gave  his  professional  attention  to  this  class  of  work  is  scarcely 
credible.  His  severe  labors  in  such  connections,  without  rest  or  relaxa- 
tion, as  well  as  in  attending  to  the  more  profitable  business  that  came 
to  him,  finally  led  to  his  death  through  nervous  exhaustion.  In  the 
later  years  of  his  life  his  legal  associates,  desirous  of  reserving  his 
energies  for  the  important  corporation  practice  of  the  firm,  instituted, 
unknown  to  him,  an  informal  system  of  cross-examination  of  those  who 
sought  interviews  with  him  during  office  hours,  to  prevent  them  from 
making  appeals  to  which  it  was  certain  he  would  respond,  however 
injurious  to  his  own  material  interests  the  demands  might  be.  Had 
Mr.  Sullivan  known  this  he  would  have  been  deeply  grieved.  More- 
over, those  who  failed  to  see  him  at  his  office  had  but  to  call  at  his  home 
in  the  evening  to  attain  their  object. 

It  must  be  said,  further,  that  his  generous  bestowal  of  his  legal 
abilities  upon  the  needy — great  as  was  its  encroachment  on  his  time  and 
strength — was  but  a  single  phase  of  the  spirit  of  self-sacrifice.  The 
words  of  General  Burnett,  "  he  kept  himself  poor  by  his  giving,  and  he 
wore  his  life  away  in  this  striving  to  help  his  fellow-man,"  '  are  liter- 
ally true.  "  Few  men  whom  I  have  known  in  this  city  during  the  last 
twenty-five  years,"  said  another,  "  have  been  as  willing  to  forego  their 
private  interests  and  convenience  in  order  to  contribute  counsel,  efforts 
and  means  to  advance  the  public  good.""  Said  his  pastor:  "He  felt 
the  sorrows  and  troubles  and  difficulties  of  others  as  if  they  were  his 
own,  and  he  gave  freely  of  his  time,  his  money,  and,  what  was  best  of 
all,  himself,  to  their  easement.  He  always  espoused  the  cause  of  the 
weak,  the  oppressed,  and  the  friendless,  and  chivalrously  threw  him- 
self, like  a  modern  Christian  knight,  into  every  scheme  for  the  helping 
and  uplifting  of  men  which  came  to  his  attention." '  Another  remarked: 
"  His  purse,  his  advice,  his  services  and  his  sympathies  were  ever  at  the 
command  of  the  poor  and  suffering.  His  tongue  and  his  pen,  his  time 
and  his  brain,  he  freelj^  gave  to  the  service  of  mankind."*  We  pass 
from  this  point  with  one  final  citation  : 

»  Address  at  special  meeting  of  the  Ohio  Society.  'Reverend  Richard  I).   Harlan,  in    the    New  York 

3  Address  of  Honorable  O.   B.  Potter,  at  memorial  Evanr/elist. 

meeting  of  the  Young  Men's  Democratic  club  of  New  *  Address  of  John  C.  Calhoun,  at  memorial  meeting 

York.  of  the  New  York  Southern  Society. 


IlIsroUY    OK    IIIK    in-.NCII    AND    HAIt   OK    NKW    VOKK  491 

It  is  no(  too  miicli  to  say,  I  tliiiik,  tliat  tlu'i-c  was  no  man  in  tliis  ^j-i-cat  city  who 

(lid   luort'   for  tlu'   poor   tlian  AI^^Triioii   S.  Sullivan There  was  no  orjfani/.ed 

uioveinonl  for  th(>  alleviation  of  sutrerin>;,  foi*  help  and  succor  to  earth's  unfortu- 
nates, which  did  not  ivceive  his  warm,  stron<;  sympathy  and  his  ellicient  aid.  It  wiis 
known  of  all  the  j^ood  men  and  pood  women  how  ready  he  was  to  do  all  in  his  power 
to  help  forward  any  yood  work,  and  so  it  cam(>  ahoul  that  when  an  etFort  was  to  he 
made  to  orjjanize  somecharitahle  movement,  to  enlistand  arouse  the  people  in  hehalf 
of  some  <;ood  caus(\  to  rtdievc"  sull'erin;^,  to  drive  out  vice,  to  lift  up  the  fallen,  Mr. 
Sullivan  wiis  expected,  and  was  there,  always  found  leading,  giviug  expression  and 
dircx-tion  to  the  effort.  In  api)ealing  to  the  people  in  such  a  cause,  how  eloquent, 
how  pathetic  he  was,  what  sympathetic,  what  ijleadiufr.  what  tender  tones  in  that 
musicjil  voice  as  he  told  of  the  lonj;  houi-s  of  toil,  the  dark  days  of  siclcnes.s,  the  end- 
less misfortunes  and  voiceless  sufferings  of  the  poor  and  the  unfortunate ! ' 

Mr.  Sullivan's  distinguishing  professional  character  is  therefore 
exceedingly  unique  : — the  services  of  one  of  the  most  able  lawyers  New 
York  City  has  ever  known,  not  only  were  not  uniformly  employed  in 
suits  of  celebrity,  but  are  largely  buried  with  the  unwritten  history  of 
the  lower  courts  in  the  humble  litigations  of  the  unfortunate.  And 
such  was  his  whole-heartedness  in  these  sacrifices,  that  in  every  in- 
stance of  the  kind  where  the  details  have  been  ascertained,  he  brought 
the  same  legal  brilliancy,  zeal,  energy,  careful  preparation  and  moving 
eloquence,  which  made  his  efforts  so  valuable  and  so  effective  in  the 
most  weighty  matters.  It  is  this  feature  of  his  work  rather  than  his 
famous  cases  which  merits  peculiar  mention,  for  here  he  stands  alone 
in  a  stern  and  selfish  world,  inviting  the  emulation  of  all  men. 

On  the  other  hand,  the  trial  of  the  officers  and  crew  of  the  schooner 
Savannah  on  the  charge  of  piracy  in  18(51 — the  most  notable  and  dra- 
matic of  all  Mr.  Sullivan's  cases — is  likewise  of  special  interest,  because 
of  the  attending  circumstances  which  displayed  the  sterling  qualities 
of  the  man.  This  case  Mr.  Joseph  Larocque  characterized  at  the  time 
as  "  one  of  the  most  interesting  trials  that  ever  took  place  on  the  con- 
tinent of  America,  if  not  in  the  civilized  world."  "'  The  Savannah  had 
been  commissioned  as  a  privateer  by  a  letter  of  marque  from  Jefferson 
Davis,  had  captured  a  prize,  and  had  been  captured  in  turn  by  a  fed- 
eral brig-of  war  and  the  crew  brought  to  New  York  City — not  as  pris- 
oners of  war,  but  to  stand  trial  as  pirates.  President  Lincoln  had 
previously  announced  that  those  operating  under  "  pretended  letters 
of  marque  "  from  the  southern  states  would  be  "  held  amenable  to  the 
laws  ....  for  the  prevention  and  punishment  of  piracy." '  The  issue 
thus  raised  was  momentous.  It  was  not  claimed  by  the  counsel  for  the 
defence,  of  whom  Mr.  Sullivan  was  one,"*  that  the  federal  government 
was  required,  perforce,  to  recognize  the  confederacy  as  a  belligerent, 
but  that  since  an  organized  and  widely-recognized  government  cer- 
tainly did  exist  de facto  if  not  deju?'e,  every  consideration  of  human- 

'  Address  of  General  Henry  L.  Burnett.  Lord,  James  T.  Brady.  Joseph  H.  Dukes,  Isaac  Davega 

"  Report  of  the  trial  (New  York,  1862),  p.  66.  and  Maurice  Mayer,  while  William  M.  Evans,  Samuel 

3  Proclamation  of  April  19,  1861.  Blatchfoid  and  Ethan  Allen  assi-sted  United  States  Dis- 

*  Associated  with  him  were  Joseph  Larocque,  Daniel  trict- Attorney  E.  Delafield  Smith  in  the  prosecution. 


492 


HISTORY   OF   THE  BEXCH    AND   BAR  OF   NEW   YORK 


ityand  canon  of  civilized  law  demanded  a  practical  if  not  a  formal  and 
official  recognition  of  the  actual  state  of  affairs,  sufficient  at  least  to 
prevent  the  haling  into  court  and  trial  as  ordinary  criminals  of  cap- 
tured persons  whose  sole  offence  was  that  of  enlisting  beneath  the 
banner  of  a  warring  power  and  whose  status  was  that  of  prisoners  of 
war. 

Mr.  Sullivan's  connection  with  the  case  was  peculiar.  He  had 
been  a  lifelong  democrat,  and  while  he  had  always  opposed  slavery 
and  done  all  in  his  power  to  prevent  secession,  it  was  well  known  that 
he  recognized  the  doctrine  of  states'  rights  and  did  not  favor  a  policy 
of  coercion  of  the  south  at  the  cost  of  a  terrible  civil  war.  Thus,  while 
others  of  the  counsel  had  been  called  into  the  case  by  the  prisoners  or 

their  friends,  Mr. 
Sullivan  was  retain- 
ed in  their  interest 
by  the  attorney- 
general  of  the  con- 
federate  govern- 
ment. He  was 
thereupon  charged 
with  treason,  and 
immediately  after 
t  h  e  preliminary 
hearing  in  July, 
1861,  was  summarily  arrested  and  cast  into  prison  without  trial  or 
examination.  From  this  time  until  within  a  few  days  of  the  date  of 
the  trial,  October  28,  1861,  he  was  kept  by  the  federal  powers  closely 
confined  in  Fort  Lafayette,  suffering  severe  privation,  and  was  even 
denied  the  privilege  of  seeing  his  wife  and  child.  The  indignant  pro- 
tests of  the  lawyers  and  judges  of  the  entire  nation  secured  his  release. 
Notwithstanding  this  cruel  experience  and  the  threats  which  hung  over 
him,  he  at  once  appeared  in  court  to  defend  the  case.  Says  one  who 
knew  the  facts : 


FORT    LAFAYETTE,    1861. 


He  was  called  upon  by  many  members  of  the  bar,  some  distinguished  and 
learned  men.  He  was  told:  "Sullivan,  you  must  not  stand  here  and  defend  these 
gentlemen;  your  life  is  in  danger;  you  cannot  reach  your  home  in  safety  if  you 
do."  His  simple,  true  and  ingenuous  reply  was:  "But  I  am  retained  as  their  attor- 
ney." "That  doesn't  make  any  diffei-ence  ;  you  must  not  sacrifice  your  life  or 
injure  your  life  in  their  interest."  He  said:  "That  is  a  consideration  which  I  as  a 
lawyer  cannot  entertain.  If  my  clients  do  not  desire  to  avail  themselves  of  my  ser- 
vices, they  can  excuse  me  and  employ  some  one  else,  but  if  they  insist  upon  my  rep- 
resenting them,  I  as  a  man  and  as  a  lawyer  must  stand  and  do  my  duty."  And  he 
did  his  duty  at  the  request  of  his  clients,  even  in  the  face  of  danger.  That  is,  I  say, 
an  indication  of  his  moral  courage.  He  was  a  beautiful  character;  I  know  of  none 
more  lovely.' 


William  J.  Curtis,  on  motion  to  luijc 


1  m  mcmonam. 


IlISTOKY    OK   TlIK   HKNCII    AIS'l)    IIXU    OK    NKW    VolJK  493 

Widi  these  facts  in  view,  taking  into  acconnt  the  hitter  persecu- 
tion lie  had  just  endured,  his  pliysical  condition  in  conscHiuence,  and 
liis  total  lack  of  oppoilunity  for  prepai-alion,  let  those  who  hav»! 
access  to  the  record  rt>ad  the  reniaikable  address  of  Mr.  Sullivan  in 
suininin<2:  up  the  defence  in  this  trial.'  How  absolutely  fearless  his 
lucid  voicing  of  the  delicate  principles  involved,  which  other  counsel 
clothed  in  a  little  more  of  the  obscurity  dictated  by  caution  !  And  yet 
how  conciliatory  the  whole  argument,  how  i)ersuasive,  how  entirely 
imbued  with  the  spirit  of  peace  and  gentleness,  how  absolutely  devoid 
of  every  trace  of  the  bitterness  which  his  painful  experiences  must 
necessarily  have  engendered  in  any  other  breast ! 

Mr.  Sullivan's  other  characteristics  as  a  lawyer  and  a  man  may  be 
fittingly  summed  up  in  the  words  of  a  few  of  those  who  knew  liim 
well.     Says  one : 

It  was  his  pride  ami  pleasure  as  a  lawyer  to  defend  the  rij^ht,  aud  he  could  not 
be  retained  to  defend  the  wrong,  though  he  might  make  an  eliort  to  palliate  mis- 
takes, and  accord  to  the  law  its  demands,  discounted  by  mercy  to  one  who  had 
without  knowing  it  trespassed  upon  its  requirements.  We  have  known  Mr. 
Sullivan  to  refuse  large  retainei-s  when  ottered  to  defend  deliberate  wrong-doers,  and 

to  serve  innocent  wrong-doers  without  charge In  short,  he  stood  upon  his 

own  pedestiil  of  right  and  justice,  regardless  of  the  rule  of  tlie  legal  bar  to  take  re- 
tainers and  throw  the  great  power  of  his  moral  character  and  the  influence  of  his 
professional  prestige  into  cases  where  it  would  become  necessary  to  strive  to  make 
the  court  swerve  from  its  ermine  purity,  or  to  so  bemuddle  a  jury  as  to  close  their 
eyes  to  the  light  of  truth.-  . 

One  of  the  justices  before  whom  he  liad  frequently  argued  cases 
bears  a  like  witness  : 

Of  commanding  appearance,  kind  and  frank,  he  was  always  welcomed  by  the 
court  in  any  ca.se  in  which  he  appeared,  because  it  was  felt  that  his  learning,  ability 
and  absolute  truthfulness  would  assist  the  court  in  the  trial  of  any  question  of  law 
and  fact  with  which  it  had  to  deal.  ^ 

Said  William  Winter : 

His  learning  was  varied  and  exact.  His  eloquence  was  natural,  fluent,  sweet, 
persuasive,  often  impassioned,  always  guided  by  pure  taste,  harmonious  with  reason, 
and  directed  upon  noble  objects.  His  veneration  of  the  law  and  his  high  sense 
of  moral  responsibility  invested  his  manner  with  a  peculiar  grace  of  splendid  dis- 
tinction; and  this,  combined  with  accuracy  of  legal  knowledge,  lucidity  of  state- 
ment, felicity  of  illustration,  and  copiousness  of  vocabulary,  made  him  one  of  the 
most  impressive  orators  of  the  American  bar. 

Still  more  remarkable,  i)erhaps,  is  the  tribute  in  the  memorial  of 
the  American  Bar  Association  : 

He  was  a  legal  guide — pi'actical,  wise,  judicial,  with  exquisite  tact,  with  infinite 
patience,  with  a  sense  of  equity  almost  intuitive.  Adversiiry  and  client  alike  felt 
the  power  of  his  lucid,  conscientious,  wise  advice He  was  recognized  as  one 

'  Report  of  the  trial,  pp.  218-231.  '  Letter  in  New  Haven  Journal  and  Courier. 

3  llouorable  Henry  W.  Bookstaver,  of  tl.e  Court  of  Common  Pleas. 


494  HISTORY   OF  THE  BENCH  AND  BAR  OF  NEW   YORK 

of  the  strongest,  readiest,  and  most  successful  jury  lawyers  at  the  bar.  His  Icarniiig 
and  tastes  were  so  varied,  however,  that  lie  was  equally  accomplished  in  the  conduct 

of  the  practical  and  daily  duties  of  his  profession The  law  was  a  gi-eat  mother 

to  him.  And  he  studied  its  philosophy,  he  pictured  its  principles  with  such  love, 
wisdom  and  fairness,  that  no  lawyer  envied  the  pre-eminent  rank  which  he  attained 
and  so  easily  held.  It  is  fair  to  say  that  no  lawyer,  however  g-i*eat  his  fame,  was 
regarded  by  the  bench  with  greater  confidence  and  esteem.  The  bench  itself  was  not 
more  sensitive  than  he  to  its  dignity  and  honor.  His  life,  his  virtues,  his  judicial 
quality,  his  unwavering  honesty  and  legal  acumen  led  all  judges  to  receive  his  words 
almost  as  those  of  a  friend  of  the  court — not  merely  as  those  of  an  advocate.  No 
lawyer  equalled  him  in  the  affection  and  admiration  of  the  bar.  No  other  lawyer 
occupied  so  peculiarly  interesting  a  place  in  their  hearts. 

Mr.  William  Nelson  Cromwell,  who  for  a  long  term  of  years  was 
one  of  Mr.  Sullivan's  professional  associates,  said  : 

Although  one  of  the  greatest,  he  was  one  of  the  simplest  of  men,  with  no 
vulgar  aims,  and  with  an  unswerving  faith  in  God  and  humankind.'  He  was  the 
purest,  sweetest,  wisest  man  of  his  time.  For  nearly  fifteen  years  I  have  been  look- 
ing daily  into  his  heart,  and  during  all  those  years  and  under  the  thousand  tempta- 
tions of  a  busy  life,  professional,  social,  political,  I  never  found  there  even  remotest 
approach  to  sin.  Not  an  unkind  or  harsh  word  to  any  human  being,  nor  a  false- 
hood, not  a  bitter  thing,  not  a  profane  or  indelicate  thought  ever  passed  those  lips. 
Always  gracious  and  altogether  lovely ;  putting  aside,  not  putting  forward,  his  own 
great  personality;  reaching  out  both  hands  in  constant  helpfulness  to  men. 

This  is  not  the  tribute  of  affection,  nor  its  exaggeration ;  I  mean  my  thoughts 
to  be  literally  and  exactly  taken.  Of  whom  else,  man  or  woman,  in  all  this  world, 
could  this  be  honestly  witnessed?  Unlike  most  great  men,  lie  grew  greater  the 
nearer  we  approached  him.  These  qualities  were  stamped  by  God  on  his  noble  face, 
and  were  shown  in  every  act  of  his  daily  life,  so  that  all  men  who  met  him  went 
away  somehow  refreshed  and  ennobled.  Such  a  life  cannot  be  phrased,  it  can  only 
be  loved ;  such  a  life  cannot  die ;  such  an  influence  is  more  potent  than  man  himself. 


l^^plUTHERLAND,  JOSIAH  (born  in  Stanford,  Dutchess  county, 
^^^^^  New  York,  in  1807  ;  died  in  New  York  City,  May  25,  1887), 
Ij^^j^jy  was  graduated  from  Union  College,  studied  lavr  in  Waterford 
*————^  and  Hudson,  and  commenced  practice  in  Livingston.  He 
was  for  twelve  years  district-attorney  of  Columbia  county,  was  subse- 
quently elected  to  the  32d  congress,  and  in  1857  came  to  New  York 
City,  where  he  entered  into  partnership  with  Claudius  M.  Monell.  He 
was  elected  a  justice  of  the  Sujn-eme  Court  of  the  8th  judicial  district 
for  six  years,  to  fill  the  vacancy  occasioned  by  the  resignation  of  Jus- 
tice Whiting,  In  1863  he  was  re-elected  for  the  full  term  of  eight 
years.  In  1872  he  succeeded  Judge  Bedford,  and  was  for  a  number  of 
years  presiding  judge  of  the  Court  of  General  Sessions.     From  1879 

•  His  standard  of  life  is  well  set  forth  in  his  own  and  disinterested  service  of  his  fellow-beings  that  he 

words,  written  on  a  scrap  of  paper  found  in  his  office  most  surely  strengthens  and  idealizes  his  own  nature, 

desk  after  his  death  :    "  The  realization  of  the  ideal  The  hero  has  here  a  field  of  conquest  assigned  to  him, 

life  is  the  great  design  of  God,  and  the  great  work  of  in  which  he  need  fear  no  defeat  and  will  not  have  to 

man.    The  advancement  and  elevation  of  humanity  is  weep  over  tarnished  or  dear-bought  victory.    He  is  a 

most  surely  promoted  by  whatever  best  and  permanently  fellow-worker  with  God." 
develops  the  individual  man.     It  is  by  the  enlightened 


HISTOUY    OF   TIIK   HENCII   AND    BAK   OK    Ni:\V    YOKK  495 

until  his  i-ctirctiu^nl    from  :irtiv(»  business  iic  ])i-;ictic<'(l  liiw.  Mssociatfd 
with  Francis  M.  Scott. 

In  all  the  positions  iichl  by  .Iiid^c  Siitlierlaiul  lie  was  cliaractcri/tnl 
by  the  hi<;hest  integrity  and  <iji-eat  foi-ce  of  character.  L'i)on  his  i-etire- 
nient  from  the  IxMich  in  1S7S  a  reception  was  ^iven  hitn  l)y  the  mem- 
bers of  the  New  York  (Mty  bar,  at  which  exceptionally  niarkt'il  tributes 
of  praise  were  bestowed. 

I.VILKR,  HENRY  A.  (born  in  New  York  City  in  1^03;  died 
iliere,  March  15,  1S78),  was  graduated  at  Columbia  Law 
School  in  isr)2  at  the  head  of  his  class.  The  next  two  years 
he  visited  Europe  and  studied  civil  law  at  the  universities 
of  r>onn  and  Heidelberg,  acquiring  at  the  same  time  a  thorough  knowl- 
edge of  the  French  and  Gernum  languages  and  literature.  Returning 
to  New  York  he  completed  his  legal  education  with  the  lirm  of  Kent, 
Eaton  &  Kent,  was  admitted  to  the  bar,  and  upon  the  death  of  Mr. 
Kent  became  a  member  of  that  firm,  the  name  changing  to  Eaton, 
Davis  &  Tailer.  Upon  the  retirement  of  J.  C.  Bancroft  Davis  it  be- 
came Eaton  &  Tailer.  Aside  from  his  legal  attainments,  which  were  of 
a  high  ordei',  he  was  distinguished  for  refined  literary  taste  and  for 
the  purity  and  integrity  of  his  character. 


ALCOTT,  JOHN  L.  (born  in  western  New  York;  died  in 
Buffalo,  January  20,  1887),  ranked  for  many  years  as  one  of 
the  most  eminent  lawyers  of  the  state.  He  was  elected  jus- 
tice of  the  Supreme  Court  for  the  8tli  judicial  district,  Nov- 
ember 2,  1809,  and  served  for  a  term  of  fourteen  years.  He  was  ap- 
pointed associate-justice  of  the  general  term  for  the  4th  department, 
December  2i),  1870,  and  on  November  15,  1881,  was  chosen  presiding 
judge,  occupying  that  position  until  his  term  expired.  He  passed  his 
subsequent  life  in  retirement  from  active  professional  life. 


|ALLMADGE,  FREDERICK  AUGUSTUS  (born  in  Litchfield, 
Connecticut,  August  29,  1792 ;  died  there,  September  17, 
IStiO),  was  a  Y'"ale  graduate,  was  prepared  for  the  legal  pro- 
fession at  the  Litchfield  Law^  School,  and  came  to  New  Y'ork 
to  practice.  He  served  in  the  boards  of  aldermen  and  councilmen,  the 
state  senate  (becoming  president  of  that  body  and  ex  officio  judge  of 
the  Court  of  Errors),  and  congress  (1847  to  1849).  He  was  recorder 
of  the  city  from  1841  to  184«),  and  from  1848  to  1851,  and  in  that  office 
made  a  memorable  record  in  dealing  with  the  Astor  j^lace  riots.  He 
was  also  general  superintendent  of  the  metropolitan  board  of  police 
(1857-62)  and  clerk  of  the  Court  of  Appeals  (18G2-65). 


496 


HISTORY  OF  THE  BEXCH  AND  BAR  OF  NEW  YORK 


ALLMADGE,  JAMES  (born  in  Stanford,  Dutchess  county, 
Xew  York,  January  28,  1778  ;  died  in  Kew  York  Citj",  Sep- 
tember 20,  1853),  the  son  of  Colonel  James  Tallmadge,  of  the 
Revolution,  was  graduated  in  1798  at  Brown,  and  after  being 
admitted  to  the  bar  was  a  practitioner  in  Poughkeepsie  and  Xew  York 
City.  He  was  for  a  while  Governor  George  Clinton's  private  secretary, 
and  served  in  congress  (1817-19),  as  lieutenant-governor  of  Xew  York 
(1825-26)  and  as  a  member  of  the  constitutional  conventions  of  1821 
and  1846.  In  congress  he  made  a  notable  speech  on  the  question  of 
Missouri's  admission,  in  which  he  opposed  slavery  extension.  He  was 
one  of  the  founders  of  the  University  of  the  City  of  New  York,  a 
founder  and  president  of  the  American  Institute  and  an  ardent  advo- 
cate of  protection.     His  daughter  married  Philip  S.  Van  Rensselaer. 


HOMPSON,  SMITH  (born  in  Stanford,  Dutchess  county, 
New  York,  January  17,  1768  ;  died  in  Poughkeepsie,  New 
York,  December  18,  1843),  was  graduated  at  Princeton  Col- 
lege in  1788,  and  was  a  laAV  student  under  James  Kent  (after- 
ward chancellor).  He  was  admitted  to  the  bar  in  1792,  and  after 
practicing  in  Troy  went  to  Poughkeepsie.     He  was  a  delegate  to  the 

constitutional  convention 
of  1801,  and  in  1802  be- 
came associate- justice  of 
the  Supreme  Court  of 
the  state,  having  a  short 
time  previously  declined 
appointment  as  attorney 
for  the  middle  district  of 
New  York.  Wliile  serv- 
ing on  the  supreme 
bench  he  was  selected 
mayor  of  the  City  of  New 
York,  but  he  refused  to 
accept  that  office.  Prom 
1816  to  1818  he  was  chief- 
justice  of  the  court.  In 
the  latter  year  he  was 
appointed  secretary  of 
the  navy  by  President 
]\ronroe.  He  succeeded, 
in  1823,  Brockholst  Liv- 
ingston as  associate- Mis- 
tice  of  the  Supreme  Court  of  the  United  States,  remaining  on  that 
bench  for  the  rest  of  his  life— a  period  of  twenty  years. 

Justice  Tliompson  holds  a  high  rank  in  the  jurisprudence  of  his 


'^'Tyff'jcm. 


niSTOKV    (M--     rilK    IJKNCII    AN1>    HAK    OK    NKW    V«H;K  4i»7 

native  .state  and  of  the   Tnilfcl   Statrs.      His  opinions  ar»!  rspccinlly 
marked  bv  urcat  Icaniiiin'  in  the  l;i\v. 


1IIUX)P,  EXOS  THOMPSON  (horn  in  Johnstown,  Mont- 
,i;(tnu'ry  county,  New  York,  August  21,  17S4;  died  at  ins 
country  residence,  Willowbroolc,  near  Auburn,  New  York, 
November  1,  1874),  was  admitted  to  tlie  bar  at  Albany  in 
ISOti,  liaving  received  a  classical  and  legal  education.  Beginning 
practice  at  Auburn,  he  enjoyed  professional  success,  and  also  became 
active  and  prominent  in  politics.  After  holding  local  offices  he  served 
part  of  a  term  in  congress  (1815-1(5),  but  was  defeated  for  re-election. 
From  1S2;5  to  182S  he  sat  on  the  circuit  bench  of  the  state,  resigning  to 
become  lieutenant-governor,  at  the  solicitation  of  Martin  A'an  Buren, 
who  at  the  same  time  was  elected  governor,  l^pon  Mr.  Van  Buren's 
appointment  as  secretary  of  state  by  President  Jackson,  Judge  Throop 
succeeded  to  the  governorship.  He  was  re-elected  in  1830,  but  de- 
clined another  election  in  18;{2.  From  1833  to  1838  he  was  naval 
officer  at  the  port  of  New  York,  and  from  1838  to  1842  was  cJiarge 
(V  off  aires  at  Naples.  Returning  to  the  United  States  he  went  into 
retirement,  devoting  himself  to  agricultural  pursuits  for  the  remainder 
of  his  life. 


|1IR00P,  MONTGOMERY"  HUNT  (born  in  Auburn,  New 
Y^'ork,  January  26, 1827- ;  died  in  Albany,  New  Y'ork,  Septem- 
ber 11,  1892 1,  was  a  nephew  of  Governor  Throop  and  a  son  of 
George  B.  Throop,  a  well-known  lawyer  and  banker.  His 
mother  was  a  sister  of  Ward  Hunt,  the  distinguished  chief -judge  of 
the  Court  of  Appeals  and  associate-justice  of  the  United  States  Su- 
preme Court.  He  attended  Geneva  (now  Hobart)  College,  but  did  not 
complete  his  course,  and  soon  afterward  began  the  study  of  law  in  the 
office  of  his  uncle.  Ward  Hunt.  After  his  admission  to  the  bar  he 
practiced  for  a  time  at  Utica  with  Mr.  Hunt,  and  then  removed  to 
Michig-an,  but  after  two  years  he  returned  to  Utica,  forming  an 
association  with  Roscoe  Conkling,  which  lasted  for  seven  years.  He 
then  went  to  New  Y'ork  City. 

In  1870  he  was  appointed  on  the  commission  to  revise  the  laws, 
from  whose  labors  resulted  the  present  code  of  civil  procedure.  He 
was  chairman  of  this  commission  until  the  completion  of  its  work,  and 
was  its  most  active  member. 

From  1880  until  his  death  he  lived  in  Albany,  devoting  himself  to 
legal  authorship.  His  published  works  include  "  A  Treatise  on  the 
Validity  of  Verbal  Agreements  as  Affected  by  the  Legislative  Enact- 
ments in  England  and  the  United  States,  commonly  called  Statutes  of 
Frauds "  (1876),  "  The  New  Revision  of  the  Statutes  of  New  Y'ork : 


498       HISTOKY  OF  THE  BENCH  AND  BAR  OF  NEW  YORK 

the  Code  of  Kemedial  Justice,  witli  Explanatory  Notes,"  "The  New 
York  Justices'  Manual,"  "  Digest  of  Massachusetts  Reports,  1804-86  " 
(1887),  and  "  A  Treatise  on  the  Law  Relating  to  Public  Offices  and 
Sureties  on  Official  Bonds  "  (1892). 


jTLDEN,  SAMUEL  JONES  (born  in  New  Lebanon,  New  York, 
February  9,  1814 ;  died  at  his  country  residence,  Greystone, 
Westchester  county,  New  York,  August  4,  1886),  was  a  de- 
scendant of  Nathaniel  Tilden,  of  Tenterden,  England,  who 
emigrated  to  New  England  in  1634,  settling  in  Scituate,  Massachusetts. 
Mr.  Tilden's  father,  Elam  Tilden,  Avas  a  farmer,  who  also  carried  on  a 
mercantile  business  and  enjoyed  the  personal  friendship  of  Martin 
Van  Buren.  The  son  at  an  early  age  displayed  high  intellectual  quali- 
ties, but  was  very  delicate  physically,  and  throughout  his  life  he  suffered 
the  disadvantage  of  a  frail  constitution.  He  entered  Yale  College  at 
the  age  of  seventeen,  but  in  consequence  of  poor  health  was  obliged  to 
abandon  his  studies.  Later  he  attended  the  University  of  the  City  of 
New  York  and  prepared  himself  for  the  bar.  From  the  time  of  his 
admission  (1841)  until  he  attained  commanding  prominence  in  public  life 
— a  period  of  more  than  thirty  years— he  devoted  himself  uninterrupt- 
edly and  with  steadily  increasing  success  to  his  profession.  Although 
he  was  constantly  interested  in  politics  and  gave  very  close  attention 
to  the  details  of  party  concerns,  his  distinctive  character  until  the 
seventies  was  uniformly  that  of  a  lawyer  and  not  of  a  public  man. 
Indeed,  he  held  none  but  minor  offices  in  all  that  time— member  of  the 
assembly  in  1845  and  1846,  delegate  to  the  constitutional  convention  of 
1846  (in  which  he  opposed  the  jirogramme  of  an  elective  judiciary),  and, 
for  a  time,  corporation  attorney  of  the  City  of  New  York. 

Mr.  Tilden  soon  became  a  recognized  specialist  in  numicipal  law 
and  obtained  a  lucrative  practice  from  contractors.  His  remarkable 
mathematical  abilities  were  of  great  value  to  him  in  this  variety  of 
practice.  He  also  was  highly  proficient  in  conveyancing,  noted  for  his 
unfailing  accuracy.  In  the  celebrated  quo  warranto  case  of  Giles  ?',?. 
Flagg  and  the  suit  of  the  heirs  of  Doctor  Burdell,  contesting  the  claim 
of  Mrs.  Cunningham  to  administer  upon  the  Burdell  estate,  his  con- 
summate skill  in  dealing  with  matters  of  extreme  intricac.y  was  strik- 
ingly displayed.  From  1858  to  1875  he  was  employed  as  counsel  by 
many  great  railway  corporations.  An  especially  memorable  suit 
which  he  successfully  conducted  was  that  of  the  Delaware  &  Hud- 
son Canal  Company  against  the  Pennsylvania  Coal  Company.  During 
the  war  he  was  frequently  summoned  to  AVashington  to  consult  with 
Secretary  Stanton,  who  had  a  very  high  opinion  of  his  legal  accomi)lisli- 
ments.  Governor  Horatio  Seymour  also  frequently  sought  his  profes- 
sional advice— particularly  during  the  draft  riots  of  1863.     In  the  half- 


iiisiowv  OF   iiii:  i!i:.\<ii   .\.M>  I'.Ai:  di'  .\i;\v   V(»i:k  41)0 

dozen  yciiis  rollowiiifif  tlic  close  of  the  war  he  chjsely  piiisiifd  liis  ino- 
tVssion,  refiisiuL!:  inoi-e  retainers  than  he  accepfcd. 

Mr.  William  Alien  Hntler,  in  a  brief  nieinoiial  of  Mr.  'i'iJden, 
spealv.s  as  loliows  of  liis  special  character  as  a  lawyer: 

Never  iciontifled  wilii  tlie  jjeiierul  practice  of  tlie  i)rofe.ssioii  oi-  seekiiiff  a  hwffc 
clientaf^,  he  became  a  master  of  the  hiw  as  a  science  and  an  acknowledfifed  authority 
in  one  of  its  branches  most  ch)sely  allied  with  the  main  sources  of  our  national 
l)ro^])erity.     Without  special  forensic  ability,  he  trained,  in  conspicuous  ca.ses.  signal 

victories  at  the  bar Ho  believed  in  the  potency  of  definite  facts  a.s  the  best 

means  of  produciuf^  conviction  in  the  minds  of  men,  and  would  say  that  to  this  end 
he  would  rather  have  one  fact  than  a  colunni  of  rhetoric.  But  it  was  the  facts  under- 
lyiufi-  and  out  of  si<>;hl  and  undiscoverable,  except  by  long  and  patient  labor,  which 
seemed  especially  to  attract  him  and  to  furnish  a  kind  of  native  .stimulus  to  his  k«en 
peiveptions,  which  he  trained  for  service  in  the  dark.     This  gave  him  a  rare  and,  in 

some  respects,  an  unequalled  power He  followed  liis  profession  according  to 

an  elective  method  as  to  the  cases  he  undertook,  which  would  have  been  fatal  to  men 
of  less  ability.  His  clients  must  bide  his  time  for  e.xamniation  and  action,  and  he 
must  have  his  own  way  of  dealing  with  the  cause.  This  made  him  less  convei"sant 
with  the  courts  than  with  the  consultation-room,  and  yet,  on  occasion,  as  in  the 
famous  Burdell  case,  he  was  found  fully  equipped  for  the  active  conflicts  of  the  bar. ' 

Mr.  Tilden's  rise  to  eminence  in  political  life  was  the  direct  se- 
quence of  the  exercise  of  his  great  professional  abilities  for  the  purifi- 
cation of  the  municipal  government  and  the  judiciary  of  the  City  of 
New  York.  He  was  one  of  the  signers  of  the  circular  which  led  to  the 
organization  of  the  Association  of  the  Bar  and  delivered  a  stirring 
speech  at  the  bar  meeting  of  February  1,  1870.'  In  all  the  subsequent 
proceedings  against  the  Tweed  ring  and  the  corrupt  Judges  he  was  one 
of  the  most  conspicuous  and  aggressive  citizens,  and  the  resulting 
achievement  was  in  large  measure  his  individual  performance.  In 
1871  he  accepted  an  election  to  the  assembly  for  the  express  purpose 
of  carrying  forward  the  impeachment  proceedings  against  Judges 
Barnard,  Cardozo  and  McCunn. 

In  1874  he  was  elected  governor  of  New  York  over  John  A.  Dix 
by  a  majority  of  50,000.  In  that  office  he  chielly  distinguished  himself 
by  his  policy  of  correcting  abuses  and  corruption  in  the  management 
of  the  state  canals.  He  was  nominated  for  president  in  1876  by  the 
democratic  party.  Tlie  canvass  resulted  in  a  disputed  election,  which, 
as  finally  adjudicated  by  the  extra-constitutional  electoral  commission, 
gave  Mr.  Tiiden  184  electoral  votes  to  185  for  Mr.  Bayes.  Afterward 
he  lived  in  retirement,  though  continuing  to  manifest  a  dignified  in- 
terest in  important  public  affairs.  He  left  in  his  will  the  greater  jiart 
of  his  large  fortune  for  the  creation  of  a  free  public  library— a  bequest 
that  became  a  matter  of  active  litigation  in  the  state  courts. 

'  Annual  Report  of  tlic  Association  of  the  Bar  of  the  City  of  New  York,  1887. 

-  Sec  p.  196  of  this  volume. 


500 


HISTORY  OF  THE  BENCH  AND  BAR  OF  NEW  YORK 


ILLMAN,  SAMUEL  DYER  (born  in  Utica,  New  York,  April 
1,  1815;  died  in  New  York  City,  September  4,  1875),  was 
admitted  to  the  bar  in  Canandaigua,  New  York,  after  his 
graduation  from  Union  College.  He  practiced  for  sixteen 
years  in  Seneca  Falls,  and  then  retired  from  the  legal  profession  and 
removed  to  New  York.  There  he  devoted  himself  to  scientific  pursuits 
in  connection  with  the  American  Institute.  He  invented  several  valu- 
able scientific  appliances,  and  wrote  essays  on  technical  subjects. 


HOMPKINS,  DANIEL  D.  (born  in  Fox  Meadows,  now  Scars- 
dale,  Westchester  county,  New  York,  June  21,  1774;  died  on 
Staten  Island,  June  11,  1825),  was  the  son  of  Jonathan  G. 
Tompkins,  a  farmer.  After  being  graduated  at  Columbia 
College  (1795)  he  fitted  himself  for  the  law.  He  was  admitted  to  the 
bar  in  1797,  and  soon  took  rank  with  the  able  practitioners  of  New 

York  City.  He  also  speedily 
became  a  leading  man  in  the 
politics  of  the  day,  devoted  to 
the  anti-federalist  party.  He 
was  a  member  of  the  state  con- 
stitutional convention  of  1801, 
and  in  1804  was  chosen  a  repre- 
sentative in  congress,  but  he 
resigned  that  office  to  become  an 
associate  justice  of  the  Supreme 
Court  of  the  state.  This  posi- 
tion he  likewise  resigned,  hav- 
ing been  nominated  for  gov- 
ernor. He  was  elected  (18<i7), 
and  four  times  re-elected,  serv- 
ing until  January,  1817,  when 
he  retired  to  assume  the  duties 
of  vice-president  of  the  United 
States.  His  last  official  act  as 
governor  was  a  message  to  the 
legislature  recommending  the 
fixing  of  a  day  for  the  abolition 
of  slaver}%  and  that  body  ac- 
cordingly a])pointed  the  4th  of 
July,  1827.  In  1820  he  Avas  once  more  elected  vice-president.  In 
1821  he  sat  in  the  state  constitutional  convention.  The  closing  years 
of  his  life  were  clouded  by  charges  refiecting  upon  his  integrity  in 
office. 


nisi'oKY  OK  Till':  I!i:n<ii  and  hau  ok  NKW  YOUK 


noi 


fIRACV,  ALBKRT  IIAI.LKR  (bom  in  Noiuidi,  (■omiccti.iii, 
.lime  17,  IT'.t;];  died  in  HiiII'mIo,  New  York,  S('])t('nil)er  12,  lSi><j), 
was  the  son  of  IMiincas  Lyman  Tracy,  a  prominent  lawyci- 
and  public  man  of  Jiatavia,  New  York.  The  .son  at  first 
studied  for  the  medical  ])roi'ession,  but  afterward  chose  a  letj^al  career, 
being  admitted  to  the  bar  in  1S15,  and  beginning  jjractice  in  BulTalo. 
He  served  with  ability  in  congress  for  six  years  fi'om  lSil>,  and  in  the 
state  senate  for  the  same  number  of  years,  being  elected  to  the  latter 
body  in  1830.  As  a  state  senator  he  was  a  member  of  the  court  of  final 
jurisdiction,  and  the  oi)inions  and  decisions  that  he  delivered  in  that 
capacity  enjoy  specially  high  reputation  in  the  legal  literature  of  the 
state. 


K  ACY^  CHARLES  (born  in  Whitestown,  Oneida  oonnty,  New 
York,  February  17,  1810 ;  died  in  New  Y^ork  City,  June  1, 
18S5),  was  a  son  of  William  Gedney  Tracy,  a  Whitestown 
merchant.  He  was  prepared  for  college  at  Partridge's  Mili- 
tary Academy,  \vas  graduated  at  Y'ale  in  1832,  and  studied  law  under 
Henry  R.  Storrs  and  Henry  A.  Foster.  Being  admitted  to  the  bar,  he 
practiced  in  Utica  until  181:9,  when  he  removed  to  New  York,  where, 
after  a  brief  partnership  with  Edwin  C.  Litchfield,  he  formed  an  asso- 
ciation with  W.  Ho\vard  Wait  and  D wight  II.  Olmstead. 

In  his  career  of  forty  years  at  the  metropolitan  bar,  Mr.  Tracy  was 
employed  largely  in  corporation  business,  especially  as  counsel  for 
railway  companies.  He  Avas  attorney  for  the  Chicago,  Rock  Island  & 
Pacific  Railroad,  the  Union  Pacific,  and  many  others,  as  also  for  the 
United  States  Mortgage  Company.  He  was  regarded  as  one  of  the 
very  ablest  members  of  the  profession.  He  was  a  man  of  literary  tastes 
and  scholarly  refinement,  and,  although  never  actively  engaged  in  pub- 
lic life,  was  earnestly  devoted  to  the  cause  of  good  government.  He 
was  one  of  the  founders  of  the  Association  of  the  Bar. 

His  brother,  William  Tracy,  was  also  an  able  and  well-known  law- 
yer, for  a  time  associated  with  him  professionally. 


RACY,  JEREMIAH  EYARTS,  son  of  Ebenezer  Carter  Tracy 

and  Martha  Sherman  Evarts,'  was  born  in  Windsor,  Vermont, 

January  31,  1835.     He  is  of  an  old  New  England  family, 

being  sixth  in  lineal  descent  from  Stephen  Tracy '  who  came 

in  the  ship  Ann  from  England  to  Plymouth,  Massachusetts,  in  1623. 


>  Martha  Sherman  Evarts  was  a  daughter  of  Jeremiah 
Evarts  and  Mehitabel  Sherman,  and  a  granddaughter  of 
Roger  Sherman,  vfho,  among  the  patriots  of  the  revolu- 
tionary period,  has  the  unique  distinction  of  having 
been  the  only  signer  of  all  four  of  the  great  national 
compacts,  to  wit:  the  association  01^1774,  the  declaration 
of  independence,  the  articles  of  confederation,  and  the 
constitution  of  the  United  States. 


'As  follows :  Stephen,  as  above;  John  2,  who  married 
Mary  Prence,  a  daughter  of  Thomas  Prence,  who  came 
from  England  in  the  ship  Fortune  in  1621,  and  after- 
ward became  governor  of  Plymouth  colony  ;  Stephen 
(2d)';  Thomas  <;  Joseph';  Ebenezer  Carter « ;  Jere- 
miah Evarts'. 


503  HISTORY   OF  THE   BENCH   AND   BAR   OF  NEW   YORK 

Mr.  Tracy's  father  was  the  founder,  editor  and  publisher  of  the 
Vermont  Chronicle,  a  religious  newspaper  of  extensive  infliTence 
throughout  the  state,  which  he  conducted  for  more  than  thirty  years, 
and  until  his  death  (May  15,  1862).  His  mother  died  April  10,  1889. 
Mr.  Tracy  is  one  of  eight  children,  three  of  whom  have  died,  one  in 
infancy,  and  another,  Martha  Day,  at  the  age  of  nineteen — the  third, 
William  Carter,  an  officer  in  the  union  army,  being  killed  in  the  war  of 
the  rebellion.  He  has  living  one  sister,  Anna,  wife  of  Reverend  George 
P.  Byington,  a  clergyman  settled  in  Vermont,  and  three  brothers, 
Roger  Sherman,  a  physician,  now  registrar  of  records  of  the  depart- 
ment of  health  in  New  York  City,  John  Jay,  a  lawyer  in  Tennessee, 
and  Charles  Walker,  who  is  in  business  in  Portland,  Oregon. 

Jeremiah  Evarts  Tracy  received  his  early  education  in  his  native 
state,  Vermont.  At  an  early  age  he  began  the  study  of  the  law  in  the 
office  of  his  uncle,  William  M.  Evarts,  in  the  City  of  New  York,  and 
having  continued  his  studies  in  New  Haven,  Connecticut,  he  received 
from  Yale  College  the  degree  of  LL.B.  in  1857,  having  previously,  in 
1856,  been  admitted  to  the  bar  in  New  York  a  few  days  after  attaining 
his  majority. 

Upon  leaving  New  Haven  he  became  an  assistant  in  the  office  of 
Mr.  Evarts,  and  on  June  1,  1859,  he  was  admitted  to  partnership  with 
him  in  the  practice  of  the  law.  This  partnership  with  Mr.  Evarts  and 
others  has  ever  since  continued — the  present  lirm  (1897)  being  known 
as  Evarts,  Choate  &  Beaman,  and  consisting  of  William  M.  Evarts, 
Joseph  H.  Choate,  Charles  C.  Beaman,  J.  Evarts  Tracy,  Treadwell 
Cleveland,  Prescott  Hall  Butler  and  Allen  W.  Evarts. 

Mr.  Tracy  was  married  September  30,  1 863,  to  Miss  Martha  Sher- 
man Greene,  and  has  nine  children,  Emily  Baldwin,  Howard  Crosby  (a 
lawyer  practicing  in  New  York  City),  Evarts  (an  architect  in  New  York 
City),  Mary  Evarts,  Margaret  Louisa,  Robert  Storer  (who  has  recently 
been  graduated  from  the  College  of  Physicians  and  Surgeons  in  New 
York  and  is  now  an  assistant  on  the  surgical  side  in  the  New  York 
Hospital),  Edith  Hastings,  Martha  (now  a  student  in  Bryn  Mawr 
College),   and  William  Evarts  (now  a  student  in  Yale  College). 

In  1871:  JMr.  Tracy  removed  his  residence  from  New  York  to  Plain- 
field,  New  Jersey,  which  has  since  been  his  home.  While  continuing 
the  practice  of  the  law  in  the  City  of  New  York  he  has  not  failed  to 
manifest  interest  in  the  affairs  of  Plainfield.  He  has  served  at  different 
times  as  a  member  and  as  president  of  the  common  council  of  the  city, 
and  has  been  for  many  years  one  of  the  directors  of  the  Plainfield 
Public  Library  and  one  of  the  governors  of  Muhlenberg  Hospital, 
located  there. 

He  is  a  member  of  the  New  York  City  and  State  Bar  Associations, 
of  the  committee  of  counsel  of  the  Lawyers'  Title  Insurance  Company 
of  New  York,  of  the  Yale  Alumni  Society  and  of  the  New  York  Law 
Institute. 


iiisroi:Y  OF   riii':  hkncii  and  kau  ok  nkw   voi:k 


:.(»:{ 


II(^  is  jilso  ;i  inciiilx'i'  of  llir  mililaiv  oidt-r  of  tin-  l/tyiil  lit'L:ioii  of 
the  rilitt'd  Stiltt's  iiiul  of  llic  Kmpiic  Stale  Socit-ty  of  llir  Sons  of  flu; 
American  Rcvolntion. 


iJKDWKLL.  THOMAS  (born  in  Smilhtown,  Lon<;  Island,  in 
174-J;  (lied  in  IMattsburg,  J^ew  York,  .lanuary  '.iO,  \H:i-2),  was 
a  prominent  New  York  State  ])()litician  and  lawyer  of  Ids 
time.  He  was  an  ori<;inal  proprietor  of  Plattsbiirt^,  was  a 
member  of  tlie  early  provincial  congresses  (bein<jf  one  of  the  framers  of 
the  state  constitution),  was  a  delegate  to  the  state  convention  of  1788 
that  ratified  the  federal  constitution,  sat  in  the  state  constitutional 
convention  of  1801,  was  a  judge  of  probate  and  a  surrogate  of  Suffolk 
county  and  also  of  Clinton  county,  and  served  in  both  the  assembly 
and  the  senate  of  the  state. 


REMAIN,  LYMAN  (born  in  Durham,  Greene  county.  New 
York,  June  14,  1819  ;  died  in  New  York  City,  November  'SO, 
1878),  was  admitted  to  practice  law  in  1840.  He  held  local 
offices  in  his  native  county,  including  those  of  district-attor- 
ney and  surrogate,  and  later  removed  to  Albany  and  from  there  to 
New  York  City.  He  Avas  elected  attorney-general  of  the  state  in 
1858,  and  served  in  the  assembly  (1866-08)  and  in  congress  (1873-75). 

His  son,  Grenville  Trenudn  (born  in  Durham,  Greene  county.  New 
York,  April  19,  1845  ;  died  in  New  York  City,  March  14,  1878),'  inher- 
ited his  legal  abilities,  became  a  member  of  the  firm  of  Peckham  & 
Tremain,  in  Albany,  was  the  republican  candidate  for  attorney-general 
in  1877,  and  had  the  promise  of  a  very  eminent  career  at  the  bar  at  the 
time  of  his  early  and  sudden  death. 


ROUP,  ROBERT  (born  in  New  York  City  in  1757  ;  died  there, 
January  14,  1832),  was  graduated  at  Columbia  College  in 
1774  and  began  the  study  of  law  under  John  Jay,  but  dis- 
continued it  to  enter  the  revolutionary  army,  in  which  he 
served  with  distinction.  From  February,  1778,  until  1779  he  was 
secretary  of  the  board  of  war  by  the  appointment  of  congress.  He 
finished  his  professional  studies  with  Judge  William  Patterson,  of 
New  Jersey.  For  a  number  of  years  he  was  judge  of  the  United  States 
District  Court  of  New  York.  In  politics  he  was  an  adherent  of  Alex- 
ander Hamilton,  whose  personal  friendship  he  enjoyed. 


UDOR,  JOHN",  was  one  of  the  earliest  of  the  English  colonial 
lawyers,  and  was  recorder  of  the  City  of  New  York  from 
1704  to  1710.  He  practiced  for  many  years  in  the  Mayor's 
Court,  upon  whose  records  his  name  frequently  appears.    He 


died  in  1715. 


504  HISTORY   OF  THE  BENCH   AND   BAR  OF   NEW   YORK 

ILSHOEFFER,  MICHAEL  (born  in  New  York  City,  March  30, 
1793  ;  died  there,  September  6,  1881),  was  the  son  of  George 
Ulshoeffer,  a  native  of  the  margravate  of  Anspach  and  Bay- 
reuth,  who  during  the  American  Revohition  was  forced  into 
the  British  service  and  subsequently  became  a  citizen  of  the  republic. 
The  son,  after  studying  in  the  office  of  T.  W.  Smith,  was  admitted  to 
the  bar  in  1813.  He  soon  obtained  a  recognized  position  in  the  profes- 
sion. From  1818  to  1822  he  served  in  the  assembly.  In  that  body  he 
was  a  champion  of  the  bill  to  revise  the  state  constitution,  and  wrote 
a  very  able  reply  to  Chancellor  Kent's  opinion  disapproving  the 
measure."  He  became  corporation-attorney  in  1821,  and  corporation- 
counsel  in  1825,  occupying  the  latter  office  until  1829. 

He  was  appointed  judge  of  the  Court  of  Common  Pleas  in  1834, 
reappointed  in  1843,  and  elected  a  member  of  that  bench  in  1846,  under 
the  new  constitution.  He  retired  at  the  end  of  1849,  and  afterward, 
although  he  did  not  resume  his  practice,  was  frequently  selected  as  a 
referee  and  arbitrator.  He  continued  a  prominent  citizen  for  many 
years.  


PTOI^,  FRANCIS  HENRY  (born  in  Salem,  Massachusetts, 
May  25,  1814 ;  died  in  New  York  City,  June  25,  1876),  was 
descended  from  John  Upton,  one  of  the  very  early  settlers  of 
New  England.  He  took  the  legal  course  at  Harvard,  grad- 
uating from  the  law  school  in  1835,  and,  establishing  himself  in 
New  York,  gained  professional  prominence.  He  wrote  several  im- 
portant legal  works,  including  "A  Treatise  on  the  Law  of  Trade 
Marks  "  (1860),  and  "  The  Law  of  Nations  Affecting  Commerce  during 
War  "  (1863).    In  the  war  he  was  counsel  for  captors  in  prize  courts. 


AN  BUREN,  JOHN  (born  in  Hudson.  Columbia  county.  New 
York,  January  18,  1810  ;  died  on  shipboard  in  October, 
1866),  was  the  son  of  Martin  Van  Buren.  He  was  educated 
at  Kinderhook  Academy  and  Yale  College,  graduating  from 
the  latter  in  1828.  He  then  entered  the  law  office  of  Benjamin  F. 
Butler,  where  he  proved  an  apt  pupil  and  of  valuable  service  to  his 
preceptor.  His  legal  studies  were  interrupted  by  the  appointment  of 
his  father  as  minister  to  the  British  court  and  his  own  selection  as 
secretary  to  the  legation,  having  previously,  in  September,  1830,  been 
admitted  to  the  bar.  He  passed  part  of  the  years  1831  and  1832  in 
London,  becoming  especially  popular  from  his  winning  ways  in  fash- 
ionable society.  At  a  court  ball  he  danced  with  the  Princess  Victoria, 
a  circumstance  which  fastened  upon  him  his  popular  title  of  "  Prince 
John." 

In  1832  he  opened  an  office  in  Albany  under  fortunate  circum- 


.  /^.L^^  Z^/^-^^^. 


msiOKY    OK    rilK    ItKNClI    AM)    liAU    OK    N  i:\V    YoKK  .10.") 

stnncos  and  iiilliiciiccs  (hat  soon  led  (o  vciy  succcssriil  ])iji('ti('«f  vvfu  at 
a  bar  noted  for  its  learning-  and  l»rilliancy.  Aiiioii^^  his  early  cases 
were  .lohiison  rs.  Iliirst  (11  W'ciuh'll,  1M7),  in  which  he  siiccee(h'd 
against  th(^  vetei-an  Marcus  T.  Reynolds  ;  Feeter  /'.s\  Keats (1 1  Weiuh-ll, 
47),  which  terminated  in  the  Court  of  Errors;  Iloyt  /).s'.  Bhui'  ilii 
\Ven(h'II,  li)(')),  and  Olney  vs.  Devoe  (Id.,  '22S).  He  was  one  of  tlie  counsel 
associated  with  the  attorney-general  in  the  celebi-ated  case  of  People, 
on  the  relation  of  (K'orge  Tibbets,  vs.  Canal  Commissioner  (1:3  Wendell, 
335).  He  pi-epared  the  brief  for  the  plaintiff  in  the  great  case  of 
Carter  vs.  Lorillard,  which  after  a  long  contest  was  finally  decided  in 
the  Court  of  Errors.  He  continued  his  practice  at  the  Albany  bai- 
until  1836,  when,  after  a  brief  period  at  Washington,  he  removed  to 
New  York  City.  On  February  3,  1845,  he  was  elected  by  the  state 
legislature  attorney  general.  In  that  office  he  tried  many  im])ortant 
cases  for  the  state.  Among  them  was  the  case  of  Doctor  l^oughton,  or 
"Big  Thunder,"  the  leader  of  the  anti-renters, during  which  an  alterca- 
tion between  Van  Buren  and  the  opposing  lawyer  resulted  in  the 
jailing  of  both  of  them  for  twenty-four  hours.  Other  cases  wei-e  those  of 
Henry  Wyatt,  indicted  and  tried  for  an  atrocious  murder  in  Auburn 
prison,  and  of  the  negro  Freeman,  for  the  murder  of  the  Van  Ness 
family.  In  both  these  cases  Mr.  Van  Buren  was  opposed  by  AVilliam 
H.  Seward,  and  the  widest  interest  was  excited  in  the  great  legal  con- 
tests waged.  Wyatt  was  convicted  and  executed,  and  Freeman  was 
convicted  and  sentenced,  but  got  a  new  trial,  dying  while  it  was  pend- 
ing. In  the  protracted  Forrest  divorce  case,  commencing  in  December. 
1851,  Mr.  Van  Buren  met  Charles  O'Conor  as  an  opponent,  and  though 
defeated  added  greatly  to  his  legal  renown.  Daniel  Lord,  who  listened 
to  the  final  argument  in  the  Court  of  Appeals,  said  :  "  I  can  say  of 
Van  Buren  as  a  speaker  at  the  bar,  as  Judge  Story  said  of  AVilliam 
Pinckney,  '  He  possesses,  beyond  any  man  I  ever  knew,  the  power  of 
eloquent,  illustrative  amplification,  united  with  close,  flexible  logic.'" 

Mr.  Van  Buren  continued  his  practice  at  the  bar,  with  increasing 
reputation,  until  soon  before  his  death.  The  political  field  had  but 
little  attraction  for  him.  Except  in  the  memorable  contests  between 
the  barnburners  and  hunkers,  in  1847-48,  he  took  no  active  part  in 
politics.  Early  in  18G0,  his  health  being  greatly  impaired,  he  visited 
Europe  for  change  of  climate.  Failing  of  relief,  in  October  following 
he  embarked  on  the  steamer  Scotia  for  home.  He  died  during  the 
voyage. 


AN  BUREN,  MARTIN,  eighth  president  of  the  United  States 
(born  in  Kinderhbok,  Cohimbia  county,  New  York,  Decem- 
ber 5, 1782 ;  died  there,  July  24, 1862),  was  the  son  of  a  farmer. 
Abraham  Van  Buren.  He  received  but  slight  education, 
and  at  fourteen  entered  the  office  of  Francis  Sylvester,  a  rural  prac- 
titioner of  the  law.    As  a  youth  he  manifested  great  perseverance  and 


506  HISTORY   OF   THE  BENCH   AND   BAK   OF   NEW   YORK 

intelligence  in  mastering  the  principles  and  practice  of  the  profession. 
At  the  age  of  twenty  he  became  a  student  under  William  P.  Van  Ness 
in  the  City  of  New  York,  and  being  admitted  to  the  bar  in  the  next 
year  (1803)  he  returned  to  his  native  town  and  formed  a  professional 
association  with  a  step-brother.  He  very  soon  made  his  influence  felt, 
both  as  a  lawyer  and  in  politics.  His  progress  to  political  distinction 
of  the  first  order  was  gtadual,  and  meantime  he  built  up  a  very  sub- 
stantial reputation  in  the  line  of  his  profession.  He  was  surrogate  of 
Columbia  county  from  1808  to  1813,  was  a  member  of  the  Court  of 
Errors  during  his  service  as  state  senator  (1813  to  1816),  and  was 
attorney-general  of  the  state  for  four  years  from  1815.  In  1817  he 
established  a  law  firm  in  Albany  with  Benjamin  F.  Butler,  who  had 
been  his  pupil.  Mr.  William  Allen  Butler,  son  of  Benjamin  F.  Butler, 
writing  of  this  association,  says  of  Mr.  Van  Buren  as  a  lawyer : 

Mr.  Van  Buren's  standing  and  repute  as  a  lawyer  were  greater  than  is  gener- 
ally supposed.  His  later  conspicuous  career,  culminating  in  the  presidency,  has 
obscured  his  early  brilhant  record  as  a  lawyer.  In  fact,  he  was,  during  his  active 
practice  and  until  his  exclusive  devotion  to  public  afl'airs,  at  the  very  front  of  the 
bar,  succeeding  Abraham  Van  Vechten  and  preceding  Thomas  J.  Oakley  as  attorney- 
general  of  the  state  at  a  time  when  leadership  in  the  profession  was  an  essential 
qualification  for  the  place,  and  competing  in  forensic  struggles  with  the  ablest  ad- 
vocates. The  terse  and  frank  admission  of  his  great  rival,  Elisha  Williams,  the 
incomparable  jury  lawyer  of  his  time,  that  while  he  got  all  the  verdicts,  Van  Buren 
got  all  the  judgments,  was  only  a  fair  tribute  to  his  ascendency.' 

In  a  work  devoted  specially  to  the  history  and  the  notable  charac- 
ters of  the  New  York  bar  and  bench,  it  is  not  possible,  within  the 
limited  space,  to  even  fairly  epitomize  the  general  aspects  of  the  lives 
of  the  numerous  great  public  men  who  have  adorned  the  legal  pro- 
fession in  this  state.  It  must  suffice  to  merely  summarize  the  leading 
subsequent  events  of  Mr.  Van  Buren's  career. 

He  was  elected  United  States  senator  from  New  York  on  February 
6,  1821,  and  re-elected  in  1827,  but,  being  chosen  governor  the  next 
year,  resigned  his  seat.  Early  in  1829  he  resigned  as  governor  to  be- 
come secretary  of  state  in  the  Jackson  administration.  In  1831  he 
w^ent  to  England  as  United  States  minister,  but  when  the  senate  met  it 
refused  to  confirm  him  in  that  position.  Returning,  he  was  elected 
vice-president  in  1832.  In  1836  he  was  chosen  president  to  succeed 
Jackson,  but  he  was  beaten  by  General  Harrison  when  a  candidate  for 
re-election  in  1840.  He  was  the  presidential  candidate  of  the  free-soil 
democrats  in  1848,  but  received  no  electoral  votes. 


^AN  CORTLANDT,  STEPHANUS  (born  in  New  York  City— 
then  New  Amsterdam — May  4,  1643  ;  died  there,  November 
25,  1700),  was  a  son  of  Oloft"  Van  Cortlandt,  founder  of  the 
family,  who  came  to  America  in  1638,  in  the  service  of  the 
Dutch  West  India  Company,  and  was  very  prominent  in  the  affairs 

'  "  The  Revision  and  the  Revisers  "  (New  York  and  Albany,  1889),  p.  15. 


IKSTOUY    OK   'I'lIK    IJKNCH    AM)    HAU    <»K    NKW    Vit|;K 


no? 


of  New  Ainstcrdani.  St(>itli:iims  was  the  liiHl  and  only  lord  of  \'an 
CortlaiuU  manor,  lo  wliicli  dignity  Ids  estate  was  elevated  by  It-ltcis 
I>at('nf  of  William  111.,  dated  .hme  17,  1»)!I7.  He  was  probably  the 
most  distinguish(>d  and  able  New  Yorker  of  the  seventeenth  century, 
and  he  tilled  nearly  every  important  odiee  in  the  colony  except  that  of 
governor.  At  the  time  of  the  surrender  of  New  Amsterdam  to  tlir 
Eni^lish,  in  1()04,  lie  was  just  (•(mii)Ieting-  liis  twenty-first  year,  and  lie 
inui\e(liately  rose  to  prominence  under  the  new  regime. 

Although  a  merchant,  he  early  tilled  leading  judicial  positions. 
He  was  ai)i)ointed  a  member  of  the  Court  of  Assizes,  created  upon  the 
promulgation  of  the 
"  Duke's  laws/'  He 
also  served  as  judge 
of  admiralty,  judge 
of  the  common  pleas 
of  Kings  county, 
and,  for  a  brief  time 
previously  to  his 
death,  justice  of  the 
provincial  Supreme 
Court.  He  became 
mayor  of  New  York 
in  1677,  being  the 
first  native  Amer- 
ican to  hold  that 
office,  and  he  was  again  mayor  in  1686  and  1687.  In  all  his  numerous 
l)ublic  employments  he  enjoyed  the  confidence  of  the  governors  and  the 
home  administration  in  England.  He  erected  a  residence  on  the  north- 
ern shore  of  Croton  bay,  which  is  one  of  the  most  venerable  and  most 
famous  houses  now  standing  upon  the  borders  of  the  Hudson  river. 


VAN  CORTLANDT   MANSION,   KINUSBRIDGE. 


ANDEEPOEL,  AAEON  (born  in  Kinderhook,  New  York, 
February  5,  1799  ;  died  in  New  York  City,  July  18,  1871), 
was  admitted  to  the  bar,  and  after  serving  several  terms  in 
congress  (1826-30, 1833-37  and  1839-41)  removed  from  Kinder- 
hook  to  New  York  City,  wdiere  for  eight  years  from  1842  he  was  a 
justice  of  the  Superior  Court. 


ANDEEPOEL,  AAEON  J.  (bom  in  Kinderhook,  New  York, 
August  18,  1825  ;  died  in  Paris,  France,  August  23,  1887), 
was  a  nephew  of  the  preceding  and  a  son  of  Doctor  John 
Yanderpoel,  a  successful  physician.  He  v^as  graduated  in 
1843  at  the  University  of  the  City  of  New^  York,  and  began  the  study 
of  law  at  Kinderhook,  completing  his  preparation  in  the  office  of 


508  HISTORY    OF   THE   BENCH   AND   BAR   OF   NEW   YORK 

William  Curtis  Noyes.  After  two  years  of  practice  at  the  Columbia 
county  bar  he  removed  to  New  York  (1848)  and  formed  an  association 
with  J.  Bryce  Smith.  He  was  afterward  in  partnership  with  Augustus 
L.  Brown  and  A.  Oakey  Hall,  in  the  firm  of  Brown,  Hall  &  Yanderpoel 
(founded  in  1853),  which  continued  for  twenty  years,  being  succeeded 
by  Yanderpoel,  Green  &  Cuming. 

Mr.  Vanderpoel's  entire  energies  were  devoted  to  the  enormous 
business  of  these  two  great  firms.  He  steadfastly  refused  to  be  a 
candidate  for  office,  and  even  the  proffer  of  a  nomination  to  the  bench 
of  the  Court  of  Appeals  (1885)  could  not  tempt  him  to  relinquish  his 
professional  practice.  He  was  equally  able  and  successful  as  an 
advocate  and  a  consulting  counsel.  It  is  said  that  he  tried  more  causes 
before  juries  than  any  other  lawyer  of  his  time.  His  conduct  of  a  suit  at 
nisi  prlus  was  characterized  by  tact  and  sound  judgment — by  clearness 
and  conciseness  in  stating  facts,  and  strong  logic  in  supporting  them. 
He  wholly  lacked  the  oratorical  arts.  In  consultation  he  promptly 
grasped  all  that  was  important  and  material  in  a  case,  and  was  remark- 
ably judicious  in  determining  its  best  possible  presentation. 


AN  NESS,  WILLIAM  PETER  (born  in  Ghent,  New  York,  in 
1 778  ;  died  in  New  York  City,  September  6,  1826),  was  a 
friend  and  partisan  of  Aaron  Burr,  being  his  second  in  the 
""^^  duel  with  Hamilton,  and  was  prominent  at  the  New  York 
bar,  and  as  a  judge,  during  the  first  quarter  of  the  nineteenth  century. 
He  was  graduated  in  1797  at  Columbia  College.  From  1812  until  his 
death  he  was  judge  of  the  United  States  District  Court  for  southern 
New  York.  He  wrote  a  pamphlet  in  vindication  of  Burr  (1803),  and 
published  also  "Laws  of  New  York,  with  Notes"  (2  vols.,  1818),  and 
"  Reports  of  Two  Cases  in  the  Prize  Court  for  New  York  District " 
(18U). 

His  brother,  Cornelius  Peter  Van  Ness,  was  an  eminent  jurist  of 
Vermont,  became  chief-justice  and  governor  of  that  state,  and  was 
United  States  minister  to  Spain  from  1829  to  1837.  Later  (1844-45)  he 
was  collector  of  the  port  of  New  York. 


AN  NESS,  WILLIAM  W.  (born  in  Claverack,  New  York,  in 
1776  ;  died  in  Charleston,  South  Carolina,  February  27, 1823), 
a  cousin  of  the  preceding,  after  practicing  at  Claverack  and 
Hudson,  was  appointed  in  1807  justice  of  the  state  Supreme 
Court.  The  legislature,  in  1820,  tried  him  on  the  charge  of  using  his 
office  to  obtain  the  charter  of  the  American  bank,  and,  although  a 
verdict  of  acquittal  was  rendered,  he  was  removed  in  1822.  He  was  a 
federalist  leader  and  had  a  reputation  for  great  ability  and  shrewdness. 


iiisKiKV   OK    iiii';   iti:.\(ii   AMI   itAi;  (»|-  nkw   V()|;k  fiOl) 

AX  S(MIAA('K,  PI-yi'KK  (l)<)rn  in  Kindnliook,  .N..\v  York,  in 
M:ircli.  ITiT;  died  there,  Septtunber  17,  l.s.'iU),  one  of  tlie 
most  iamoiis  hiwyers  of  tlie  last  jnwt  of  the  ei<,dil('eiitli 
century  and  lirsf  part  of  the  iiinetecMith,  was  desc(!nded  Uoiu 
an  old  Diitcli  family.  After  his  graduation  at  Kin<;'s  College  (now 
Columbia)  in  ITfW,  he  prei)ared  for'the  bar  in  the  oflice  of  the  elder 
^Villianl  Smith.  In  1772  he  was  appointed  to  revise  the  colonial 
statutes.'  Being  a  loyalist,  he  was  placed  under  restraint  eai-ly  in  the 
Revolution,  and  in  1778  was  banished  to  England.  Returning  in  1785 
lie  received  a  hearty  welcome  from  the  bar,  and  until  his  death  was  a 
very  prominent  legal  cliaracter.  He  conducted  a  law  school,  educat- 
ing many  young  men  for  the  profession.  In  1773  he  published,  in 
two  volumes,  "Laws  of  the  Colony  of  New  York,"  and  in  1778  '' (Jo7i- 
d actor  General/' s,  or  the  Duty  and  Authority  of  Justices,  Sheriffs,  Con- 
stables, etc." 

His  son,  Henry  Cruger  Van  Schaack  (born  in  Kinderhook,  April  3, 
1802  ;  died  in  Manlius,  New  York,  December  16,  1887),  was  also  a 
prominent  lawyer.  He  published  the  ''  Life,  Journal,  Diary  and. 
Letters  "  of  his  father,  and  left  a  highly  valuable  collection  of  old 
manuscripts  and  autographs. 


AN  YECHTEN,  ABRAHAM  (born  in  Catskill,  New  York, 
December  5,  1762  ;  died  in  Albany,  January  6,  1837),  was  the 
first  lawyer  admitted  to  the  bar  under  the  state  constitution 
of  1777.  His  legal  preceptor  was  John  Lansing.  He  engaged 
in  practice  at  Johnstown.  He  held  local  offices  thei'e,  was  a  state  sena- 
tor and  assemblyman  and  regent  of  the  state  university,  and  served  as 
attornej'-general  of  the  state  in  1810  and  from  1813  to  1815.  Governor 
Jay  offered  him  a  place  on  the  supreme  bench,  which  he  declined. 


^AN  YORST,  HOOPER  C.  (born  in  Schenectady,  New  York, 
December  3,  1817  ;  died  in  New  York  City,  October  26, 1889), 
was  graduated  at  Union  College  in  1839  and  was  admitted  to 
the  bar  at  Albany.  He  was  attorney  and  counsel  to  that  city 
for  a  number  of  years,  and  in  1853  removed  to  New  York  City.  There 
he  acquired  a  large  practice.  He  was  appointed  judge  of  the  Court  of 
Common  Pleas  in  1868,  and  in  1871  was  elected  to  the  bench  of  the 
Superior  Court  for  a  term  of  fourteen  years.  He  also  served  as  presid- 
ing justice  of  the  Supreme  Court  by  the  governor's  appointment.  He 
was  a  vice-president  of  the  Association  of  the  Bar.  He  stood  high  as 
a  judge. 

'  See  p.  108  of  this  volume. 


510 


HISTORY    OF   THE   BENCH   AXD   BAR   OF   XETT  YORK 


.\N"  WINKLE,  EDGAR  S.  (born  in  New  York  City,  August 
3,  1810  ;  died  there,  December  9,  1882),  was  the  son  of  Peter 
Van  Winkle,  a  prominent  merchant.  He  studied  law  in 
the  office  of  John  P.  Jackson,  of  Newark,  New  Jersey,  and 
afterward  under  William  Slosson,  of  New  York,  and  was  admitted  to 
the  bar  in  1831.  For  fifty  years  he  was  a  practitioner  at  the  New  York 
bar.  He  early  became  prominent  as  counsel  for  large  moneyed  corpo- 
rations. When  Daniel  Webster  resolved  to  remove  to  New  York  and 
practice  law  in  that  city  he  chose  Mr.  Van  Winkle  as  his  associate. 

He  w^as  a  conspicuous  member  of  the  Bar  Association,  presided  at 
the  meeting  by  which  it  was  organized  (February,  1870),  and  was  its 
first  vice-president.  ^^ 


|ARICK,  RICHARD  (born  in  Hackensack,  New  Jersey,  March 
25,  1753  ;  died  in  Jersey  City,  July  30,  1831),  engaged  in  the 
practice  of  the  law  in  New  York  shortly  before  the  beginning 
of  the  Revolution,  but  abandoned  it  to  serve  in  the  army. 
He  was,  successively,  military  secretary  to  General  Philip  Schuyler, 
aide-de-camp  to  General  Benedict  Arnold,  and  a  member  of  Washing- 


/Jfa/> 


DOCITMENT  AND  SIGNATURE   BY   RUIIAUD   VAKU  K. 

ton's  staff.  He  served  as  recorder  of  the  City  of  New  York  from  1783 
to  1789,  and  as  mayor  from  1791  to  1801.  He  was  appointed  in  1786, 
with  Samuel  Jones,  to  revise  the  laws  of  the  state.  He  was  one  of  the 
founders  of  the  American  Bible  Society  and  succeeded  John  Jay  as  its 
president.  

lERPLANCK,  GULIAN  CROMMELIN  (born  in  New  York 

City,  August  6,  1780;  died  there,  March  18,  1870),  although 

best  known  as  a  scholar,  editor  and  writer,  was  eminent  at 

the  bar  of  New  York,  to  which  he  was  admitted  soon  after 

his  graduation  from  Columbia  College.    He  was  also  active  in  politics, 


IIISTOUY    (»!•'    TIIK    1U:N(II     A.NM)    It.Mi    OK    NKW    VOHK  511 

s(mt(m1  in  coiin^mss  (is-j:)-;;;}),  and  foi-  many  years  was  picsidont  of  tli<* 
boaid  of  coininissioiu'rs  of  iiiimi,i,Matioii. 

His  father,  Daniel  Croiniiieliii  \'eri)laiick,  was  a  prominent  citizen 
of  DutchesH  county,  wiiich  lie  re])resente(l  in 

con^nvss    from    1803   to    1801),  and   of   whose    ^    /    G/  )  ,  0 

('ommon  Pleas  court  lie  was  judge  from  1828  ^  *^^' ^^Uo^w^'K^ 
to  I8;}0.     (lulian's  cousin,  Isaac  A.,  was  a  dis-    ^ 

tinguished  jurist  of  western  New  York,  being  judge  of  the  Superior 
Court  of  liuilalo  for  two  terms  and  acting  for  a  period,  as  its  chief- 
justice. 

I  TELE,  JOHN"  L.  (born  in  Wasliington  county,  New  York,  June 
1T8S;  died  in  Albany,  New  York,  October  19,  1832),  was 
Imitted  to  the  bar  in  1812  and  became  a  leading  i)racti- 
tioner  of  the  counties  of  AVashington,  Rensselaer,  Saratoga, 
and  Albany.  As  a  member  of  the  state  senate  he  actively  sup])orted 
the  Erie  canal  measures,  and,  becoming  a  judge  of  the  Court  of  Errors, 
delivered  a  seiies  of  noteworthy  opinions,  which  may  be  found  in 
Cowen's  Rei)orts. 

AIT,  WILLIA:M  (born  in  Ephratah,  New  York,  February  2, 
1821;  died  in  Johnstown,  New  York,  December  29,  1880), 
being  admitted  to  the  bar  in  1846,  soon  became  prominent  in 
^  the  profession,  and  in  1848  was  chosen  district-attorney  of 
Fulton  county.  Devoting  himself  to  legal  writing,  he  published  a 
variety  of  works  of  high  authority,  including  the  following:  "  The  Law 
and  Practice  in  Civil  Actions  and  Proceedings  in  Justices'  Courts  and 
on  Appeals  to  the  County  Courts  in  the  State  of  New  York  ''  (2  vols., 
1865),  "  New  York  Annotated  Code  of  Procedure  "  (1871),  "  A  Table  of 
Cases  Affirmed,  Revised  or  Cited  in  the  Reports  of  the  State  of  New 
York  "  (1872),  "  The  Practice  in  Courts  of  Record  of  the  State  of  New 
York  "  (1872),  and  "  Wait's  Actions  and  Defences  at  Law^  and  in  Equity  " 
(7  vols.,  1876-79).    He  also  edited  editions  of  standard  legal  works. 


ALKER,  STEPHEN  AMBROSE  (born  in  Brattleboro,  Ver- 
mont, in  1836;  died  in  New  York  City,  February  5, 1893)  was 
graduated  with  first  honors  at  Middlebury  College,  Vermont, 
in  1858,  and  studied  law  in  the  office  of  Daniel  S.  Dickinson, 
at  Bingharaton,  New  York,  being  admitted  to  the  bar  in  1861.  During 
the  war  he  was  an  armj'^  paymaster.  Engaging  in  practice  in  New 
York  City  in  1865,  he  gradually  advanced  to  an  important  position  in 
the  profession,  and  was  retained  in  numerous  celebrated  litigations. 
He  was  counsel  for  the  estate  of  Bomanjee  BjTamjee  Colah,  the  unfor- 
tunate Parsee  merchant,  and  was  retained  by  various  large  companies 
and  corporations.    In  1881  he  was  an  unsuccessful  candidate  for  surro- 


512  HISTORY   OK  THE   BENCH   AND   BAR   OF   NEW  YORK 

gatCj  receiving;  the  endorsement  of  the  Bar  Association.  From  1886  to 
1889  he  was  United  States  district-attor-ney.  lie  was  one  of  the  execu- 
tors selected  by  Samuel  J.  Tilden  to  constitute  the  board  of  trustees  of 
the  Tilden  Trust. 

ALWORTIl,  EEUBEN  HYDE  (born  in  Bozrah,  Connecticut, 
October  2(t,  178S;  died  in  Saratoga  Springs,  IS' ew  York,  No- 
vember 27,  1807),  the  last  chancellor  of  the  State  of  New  York, 
was  descended  from  William  Walworth,  a  member  of  an  old 
English  family,  who  emigrated  to  America  in  1071.  Reuben  11.  entered 
upon  the  study  of  law  in  Troy,  New  York,  at  the  age  of  seventeen,  and 
was  admitted  to  the  bar  in  1809.  lie  began  practice  at  Plattsburg 
the  next  year,  and  soon  was  regarded  as  one  of  the  best  lawyers  of 
that  part  of  the  state,  becoming  a  master  in  chancery  and  a  county 
judge  in  a  brief  time.  lie  served  a  term  in  congress  (1821-23),  was 
judge  of  the  Itli  judicial  distrii^tfrom  1S23  to  1828,  and  in  the  latter  year 
was  appointed  chancellor,  retaining  that  otiice  until  its  abolition  under 
the  constitution  of  1846. 

Chancellor  Walworth  (says  a  biofijrapliical  writer)  maj'  justly  be  regarded  as 
the  great  artisan  of  our  equity  laws.  In  some  sense  he  was  the  Benthani  of  America, 
without  the  bold  speculations  and  fantastical  theories  which,  to  a  certain  extent, 
cliaracterized  the  great  British  jurist.  Wliat  Bentham  did  in  removing  defects  in 
English  jurisprudence,  Walworth  did  in  renovating  and  simplifying  the  equity 
laws  of  the  United  States.  Justice  Story  pronounced  liim  "the  greatest  equity  jurist 
living."'  Before  his  day  the  Court  of  Cluincery  in  New  York  State  was  a  tribunal  of 
ill-delined  powers  and  uncertain  jurisdiction — in  a  measure  subservient  to  the  Eng- 
lish Court  of  Chancery  in  its  procedure.  Chancellor  Walworth  abolished  nmch  of 
that  subtlety,  many  of  those  prolix  and  bewildering  formalities  which  had  their 
origin  in  the  middle  ages.  He  reduced  the  practice  of  his  couil  to  standard  rules, 
which  he  prepared  with  great  industry.  These  rules  greatly  improvcvl  the  old  sys- 
tem of  equity  practice,  and  though  he  has  been  charged  with  thus  coniplicating  the 
Court  of  Chancery  with  expensive  machinery,  it  cannot  be  gainsaid  that  with  Chan- 
cellor Walworth  equity  was  the  soul  and  spirit  of  the  law,  "creating  positive  and 
defining  rational  law,  flexible  in  its  nature  and  suited  to  the  fortunes,  cases,  and 
reciprocal  obligations  of  men."  The  contents  of  fourteen  V()lumes  of  Paige  and 
Barbour's  Chancery  Reports,  containing  the  adjudications  in  his  own  court,  and  a 
lai'ge  part  of  the  matter  of  the  thirty -eight  volumes  of  Wendell,  Hill  and  Denio's 
Reports,  consisting  of  tfio  opinions  he  pi'onounced  in  the  Court  of  Errors,  attest 
his  vast  judicial  labors.'  

ATERBl^RY,  NELSON  JARVTS  (born  in  New  York  City, 
July  !>,  IS  19  ;  died  there,  April  22,  1894),  was  the  son  of  Col- 
onel Jonathan  Waterbury,  a  liighly  esteemed  citizen  of  New 
Yoi'k,  who  died  in  1829  at  the  early  age  of  thirty-one.  His 
mothfu-  was  Elizabeth  Jarvis,  daughter  of  Elijah  Jarvis  and  B<>ts(>y 
Chapman,  who  was  a  daughter  of  Doctor  ('hai)man,  a  distinguished 
physi(;ian  of  Norw^alk,  Connecticut.    After  receiving  an  elementary  edu- 

•  Api)lotoii'n  "  Cyclopoodlii  of  American  Biography." 


IIISTOUV    (tK    'IIIK    IJKNCII    AND    HAi:    <)K    NEW    VdKK  r>  1 1? 

cation  ht;  b('<;im  the  sdidy  of  law  in  tli<^  olllcc  of  Wells  \-  \'an  Wa^^f- 
nen,  of  New  York,  a  iirin  of  icpnlalion  at  that  caily  day.  lie  was 
admitted  to  tlie  bar  as  an  attorney  by  the  Supreme  Court,  then  consist- 
ing of  three  judyvs,  Samuel  Nelson  bein<;  chief-justice.  Whih'  in 
Albany  to  obtain  license  as  counsellor  his  name  was  «Mr<)neously  and 
without  his  knowled<i;e  included  in  the  list  foi-  justice  of  the  Mariiit* 
Court.  The  fact  that  he  was  not  a  candidate  did  not  stop  the  course  of 
events,  and  tlie  governor,  Silas  Wright,  having  had  personal  ojjjiortu- 
nity  of  observing  the  capacity  and  usefulness  of  the  young  lawyer, 
gave  to  the  suggestion  his  cordial  approval.  Mr.  Waterl)nry  was  thus 
elevated  immediately  on  his  admission  as  counsellor  to  the  bench  of  a 
court  which  had  been  graced  by  many  distinguished  lawyers.  Though 
still  a  youth,  he  nuule  one  of  the  best,  most  res])ected  and  most  useful 
judges  that  ever  presided  in  that  important  court,  though  of  minor 
jurisdiction.  The  judicial  character  of  his  mind,  his  analytical,  logical 
power,  his  quickness  of  apprehension  and  conscientious  good  judgment 
singularly  qualified  him  for  the  office,  wliicli  he  held  for  four  years. 

On  his  retirement,  in  1849,  Judge  AVaterbury  pursued  the  modest 
career  of  a  young  lawyer  with  a  practice  yet  to  make  and  with  qualifi- 
cations for  success  more  solid  than  showy.  He,  however,  very  speedily 
drifted,  into  politics,  and  proved  himself  a  born  organizer,  occupying  at 
a  very  early  day  a  unique  position  among  the  democratic  leaders  of 
the  period.  Possessing  a  remarkable  memory,  and  fond  of  statistics,  he 
was  familial'  with  the  figures  of  past  elections,  not  only  in  states  and 
cities,  but  also  in  counties  and  wards;  so  that  in  election  times  he  was 
invaluable  in  helping  to  the  earliest  judgment  of  results.  In  New 
York,  the  city  of  his  residence,  he  always  took  a  most  serviceable  part, 
organization  being  at  once  his  forte  and  his  delight.  In  1853  the  com- 
mon council  of  New  York  City  had  become  so  corrujit  that  a  commit- 
tee was  organized  for  the  purpose  of  securing  municipal  reform  by  the 
passing  of  a  series  of  amendments  to  the  city  charter,  to  be  submitted 
to  a  popular  vote  before  taking  effect.  Judge  Waterbury  was  re- 
quested to  prepare  a  plan  and  direct  the  campaign.  When  the  caucus 
of  the  common  council  learned  that  the  plan  of  operation  was  to  be 
conducted  by  him  they  abandoned  any  attemj^t  to  defeat  the  amend- 
ments, which  were  adopted  by  a  majority  of  30,000  votes.  In  1851  he 
was  nominated,  to  repiesent  his  ward  in  the  board  of  education,  and 
although  he  declined  the  honor  was  nevertheless  elected.  The  service  was 
wholly  gratuitous,  and  involved  much  labor  and  sacrifice  of  time,  but 
was  performed  with  a  zeal  and  thoroughness  which  he  ever  evinced 
when  duty  Avas  involved.  In  1853  Judge  AVaterbury,  with  great  reluct- 
ance, accepted  the  position  of  assistant- postmaster  of  New  York,  and 
he  instituted  a  series  of  reforms  in  the  delivery  and  collecting  systems 
which  aided  greatly  in  the  efficiency  with  which  the  work  was  per- 
formed and  added  materially  to  the  postal  revenues. 

In  1858  the  leading  men  of  his  party  turned  to  Judge  Waterbury  as 


514  HISTORY   OF  THE  BENCH   AND   BAR  OF  NEW   YORK 

their  candidate  for  the  office  of  district-attorney  of  New  York,  to  which 
he  was  triumphantly  elected,  and  in  a  few  months  he  had  won  the  entire 
confidence  of  the  community.  In  this  office  he  brought  to  bear  quickness 
of  perception,  a  remarkable  memory  for  facts  and  faculty  for  co-ordi- 
nating them,  firmness  of  purpose,  conscientiousness,  and  intense  ear- 
nestness ;  a  combination  of  qualities  that  insured  success.  When  the 
news  reached  New  York  of  the  firing  on  Fort  Sumter  in  April,  1861, 
Judge  Waterbury  was  selected  by  the  democratic  general  committee 
of  the  City  of  New  York  to  draft  an  expression  of  its  sentiments,  and 
his  clear,  strong  and  patriotic  resolutions  were  adopted  with  enthu- 
siasm, and  were  greatly  effective  in  giving  hope  anil  courage  to  the 
upholders  of  the  union  everywhere  as  an  authentic  declaration  of  the 
opinion  of  the  mass  of  the  democratic  party  in  their  great  stronghold. 
In  the  fall  of  1862  he  was  nominated  for  congress  by  all  of  the  three 
organizations  into  which  his  party  was  at  that  time  divided.  His  elec- 
tion was  certain,  but  the  interests  of  his  party  prompted  his  withdrawal 
in  favor  of  Honorable  James  Brooks,  editor  of  the  Express.  He  was 
several  times  after  that  event  asked  to  become  a  candidate,  but  felt 
constrained  to  adhere  to  his  profession,  though  he  accepted  the  ap- 
pointment of  Judge-advocate-general  in  the  staff  of  Governor  Horatio 
Seymour. 

Judge  Waterbury  was  elected  grand  sachem  or  presiding  officer  of 
the  Tammany  Society  in  May,  1862,  and  served  one  year.  At  the  close 
of  1863  he  retired  from  the  Tammany  general  committee,  and  was  ever 
after  an  unyielding  adversary  of  the  virtual  domination  of  "  Tammany 
Hall "  over  the  democracy  of  New  York.  Such  a  man  necessarily 
made  many  formidable  political  enemies,  but  they  respected  as  well 
as  dreaded  him  even  on  the  field  of  irreconcilable  conflict. 

In  1871  Governor  Hoffman  appointed  Judge  Waterbury  one  of 
three  commissioners  to  revise  the  statutes  of  the  state,  one  of  the 
highest  tributes  paid  a  lawyer  and  a  public  man,  but  he  was  con- 
strained to  resign  the  office  after  a  futile  effort  to  harmonize  the  con- 
flicting elements  in  the  commission. 

This  sketch  does  not  approach  the  nature  of  a  biography  of  its 
subject,  but  is  a  brief  resume  of  his  life,  many  points  in  his  character 
being  of  necessity  omitted. 

Judge  Waterbury  early  in  life  married  a  Miss  Gibson,  whose 
parents  resided  in  Boston,  Massachusetts.  Their  children  are  three 
daughters  and  a  son,  Nelson  J.,  an  attorney  in  New  York  City. 


IIISTOKY    OF    rilK    HKNCIl    AM 


OF    NKW    VoUK 


TilT) 


|w^w]A'rrS,  .)()lIN,.lmuoi(l)oni  in  New  Voik  (Ml  y,  Aii--iis|  '27(().S.|, 
vlJ&lr'  '  ^^'*'  '''*'"'  •^♦'P^*'"'"""''  '^  I  ^'-  '^- 1'  l^'5'>)i  ^^iii^  !i  jiii'isf,  i)roininent 
D^f^     in  odicial  life,  a  pliilanthropiMt,  and  one  of  the  most  cniincnt 

^  citizen.sol'  New  York  duiin^  llic  icvoliitioiiary  ix'riod  and  tlif 
lirst  (|tiart('r  of  the  i)ivseiit  century.'  His  family,  of  distin<;uished 
Scotcli  linea,i:;e,  were  for  many  fj:enerations  ijrominent  hiwyers  and  jurists 
of  Kdinbur^li,  their  seat,  Rose  Hill,  hein^^  adjacent  to  that  city,  and  now 
foiniing- a  part  of  it.  Ilonorabh'  A(him  AVatt  was  in  KUil  appointed 
"writer  to  His  ^lajesty's  signet,''  tiie  liighest  grade  of  solicitor,  and 
also  lield  the  judicial  office  of  commissary  of  Kirkcudhriglit,  liaving 
jurisdiction  in  divorce  cases.  His  son,  Honorable  Jolm  Watt,  of  Rose 
Hill,  a  stately  mansion  still  standing  within  the  century,  witli  environ- 
ing gardens  and  lawns,  was  also  an  eminent  hiwyer,  and  in  1696  was 
holding  the  important  office  of  comndssioner  of  supply  for  the  shire  of 
Edinburgh,  lie  was  succeeded  in 
this  office  by  his  eldest  son,  Honor- 
able Adam  ^Vatt,  in  1704  ;  while 
anotlier  son,  Robert  "Watt,  or 
Watts  (the  grandfather  of  John 
Watts.  Junior),  emigrated  to  the 
Colony  of  New  York  near  the 
close  of  the  eighteenth  century, 
and  became  the  founder  of  the 
American  branch  of  the  family, 
the  only  direct  line  of  descent 
now  in  existence.  One  of  their 
sisters  became  Lady  Riddell,  wife 
of  the  baronet,  Sir  Walter  Rid- 
dell, who  dated  his  title  back  to 
the  reign  of  David,  first  king  of 
Scotland,  in  the  twelfth  century. 

Robert  Watts  added  a  final 
letter  s  in  writing  his  name,  and 
this  custom  was   perpetuated   by 

his  children.  About  the  year  1706  he  married  Mary,  eldest  daughter 
of  Honorable  William  Nicolls  (of  Islip  manor.  Long  Island),  eminent 
as  a  lawyer  and  statesman,'  and  of  his  wife,  widow  Van  Rensselaer, 


JOHN   WATTS,    SEXIOR. 


1  The  chapter  on  "  Society  in  the  Early  Days  of  the 
Republic"  in  the  "Memorial  History  of  New  York," 
contains  the  following  mention  of  the  social  leaders  of 
New  York  City,  at  that  time  the  capital  of  the  United 
States:  "The  bar  of  New  Y'ork  shall  be  noticed  first. 
It  save  to  the  salons  of  the  day  an  array  of  names  never 
since  surpassed  in  our  juridical  history:  James  Diiane, 
Richard  Harison,  Aaron  Burr,  Alexander  Hamilton, 
Morgan  Lewis,  Robert  Troup,  Robert  R.  Livingston, 
Egbert  Benson,  John  Watts,  Gonverneur  Morris, 
Richard  Varick,  John  Lansing,  Josiah  Ogden  Hoffman 
and  James  Kent.  At  various  times  they  ai)pearcd 
under  the  hospitable  roof  of  the  Jays,  and  in  turn  met 


at  the  tables  of  other  dignitaries  of  their  own  or  other 
professions."  *  Again:  "  Prominent  upon  Mrs.  Jay's  list 
are,  of  course,  the  names  of  the  old  New  Y'ork  families— 
the  Bayards,  the  Beekmans,  the  Crugers,  the  de  Pey- 
sters,  the  Livingstons,  the  Morrises,  the  Schuylers,  the 
Van  Homes,  the  Van  Cortlandts,  the  Van  Rensselaers, 
the  Verplancks,  the  Wattses."  t 

*Vol.  iii.,  pp.  93^. 

tlbid.,  n.  101. 

2  It  is  a  curious  fact  that  Judge  Nicolls  dropi>ed  the 
final  letter  jj  from  his  name  about  the  same  time  that 
his  sou-in-law,  Watts,  added  it  to  his. 


516 


HISTORY  OF  THE  BEXCH  AND  BAR  OF  NEW  YORK 


and  granddaugliter  of  Honorable  Matthias  Nicolls,  secretary  of  the 
Colony  of  New  York.  Robert  AVatts  and  Mary  Nicolls  had  three 
daughters,  two  of  whom  died  early,  and  one  son,  James  Watts,  Senior. 
After  some  years  Mr.  Robert  Watts  crossed  over  with  his  family  to 
Edinburgh,  expecting  to  remain  there  permanently,  but  the  death  of 
his  two  daughters  about  1724  moved  him  to  return  to  New  York. 
Here  he  died,  September  21,  1750,  at  the  age  of  seventy-two. 

His  only  son,  John  Watts,  Senior,  was  born  in  New  York,  April  5, 
1715,  and  died,  impoverished,  an  exile  in  Wales,  having  been  ex- 
patriated and  his  magnificent  estate  confiscated  on  account  of  his 
loyalty  to  the  king ;  while  his  wife,  the  beautiful  Ann  de  Lancey 
(whom  he  married  in  July,  1T42),  died  of  a  broken  heart.'     According 

to  a  memorandum  by  his  own 
hand,  she  "  died  3d  July,  1775,  two 
months  after  I  sailed  for  England 
— having  embarked  in  the  Charlotte 
packet,  4th  May,  and  left  the  light- 
house at  7  in  the  morning  of  the 
day  following,  with  a  heavy  heart, 
foreseeing  the  distresses  which 
were  hanging  over  us."  This 
gifted  lady  was  the  daughter  of 
Steplien  de  Lancey  (a  protestant 
gentleman  driven  from  Caen,  Nor- 
mandy, by  religious  persecution, 
and  the  first  lord  of  the  de  Lancey 
manor,  north  of  New  York)  and 
his  wife  Ann,  daughter  of  Steph- 
anus  Van  Cortlandt,  first  lord  of 
Cortlandt  manor. 

It  was  the  official  prominence 
of  John  Watts,  Senior,  in  the  ser- 
vice of  the  king  in  the  colony, 
which  made  him  the  object  of  political  persecution.  One  of  the 
most  remarkable  experts,  well  acquainted  with  colonial  history,  de- 
clares that  the  letters  of  John  Watts  to  General  IMonckton,  pub- 
lished among  the  Aspinwall  papers  in  the  collections  of  the  Massa- 
chusetts Historical  Society  (1871),  present  the  best  exhibit  of  political 
and  public  feeling  just  before  the  Revolution  to  be  found  in  any 
contemporaneous  -papers.  He  was  a  representative  in  the  general 
assembly,  was  attorney  to  Governor  Monckton,  and  a  member  of  the 
king's  council  from  1756  to  the  Revolution.  He  was  the  choice  of  the 
kint 


MRS.   JOHN   WATTS,   SENIOR 

(JVt-e  Ann  de  Lancey). 


'  IltT  nephew,  Sir  William  Howe  de  Lancey,  born  in  sister,  wife  of  Sir  Hudson  Lowe,  stationed  at  Saint 
New  York,  the  l)eloved  companion  and  chief-of-»talI  of  Uelena,  was  by  Napoleon  Buonaparte  declared  to  be 
Wellington,  was  mortally  wounded  at  Waterloo.    Ills     the  liandsomest  woman  he  had  ever  seen. 


nisioKv 


AM)    MA  It    OK    NKW 


r.i7 


of  the  I'ailmv  of  (lie  Kcvoliil  ion.  Tli.-  •■statt^  of  lliis  ;(.'iil  l.-iiiaii,  called 
"Rose  Hill"  al'ItT  Hi.'  family  scat  near  K(liiil)iir<r|i,  .Miihrar.Ml  that 
part  of  New  York  (Mty  bounded  by  Broadway,  Hie  Old  J'ost  lioad, 
'i'wenty-ei,i>litli  and  'rweiily-lirst  streets,  and  tlics  East  river,  containing 
almost  the  entire  li>th  and  :2:2(1  wards,  and  a  i)art  of  the  Istli.  Tliis 
valuable  domain  was  conliscated.  A  portion  of  it  was  siibse(jiiently 
bought  back  from  the  committee  of  sequestration,  and  became  Hie 
])roi)erty  of  Honoi-able  .lohn  Watts,  Junior,  son  of  the  exile. 

The  latter,  as  stated  at  the  beginning  of  tills  article,  was  one  of  the 
most  eminent  citizens  in  the  City  and  State  of  New  York.  In  1774,  at 
the  age  of  twenty-tive,  he  became  recorder  of  New  Y^'ork  City,  continu- 
ing in  office  nntil  1777,  when  the  Revolution  interrupted  his  functions, 
lie  was  thus  the  last  royal  recorder  of 
the  city.  He  was  a  member  of  the  as- 
sembly, and  its  speaker  from  January  5, 
1791,  to  January  7,  1794;  while  from 
1793  to  1795  he  was  a  member  of  con- 
gress. He  was  the  "first  judge"  of 
AVestchester  county,  receiving  the  ap- 
ix)intment  to  that  office  in  180(5. 

He  was  an  able  and  careful  judge, 
exhibiting  sound  judgment  and  judicial 
conservatism.  An  interesting  manu- 
script volume,  containing  the  proceed- 
ings of  his  court,  has  been  preserved 
and  is  in  the  custody  of  the  New  Y^ork 
Historical  Society,  being  the  gift  to  that 
society  of  Mr.  Edward  F.  de  Lancey. 

While  partaking  of  his  father's  char- 
acteristic of  loyalty  to  the  existing  gov- 
ernment, J  udge  Watts  was  (like  his  father 
again)  a  fearless  chamjuon  of  the  true 
rights  of  the  people,  and  notable  for  his 

practical  philanthropy.  The  elder  Watts  had  been  the  only  person 
who  dared  face  the  Earl  of  London  and  oppose  his  quartering  his 
troops  upon  the  City  of  New  Y'ork  in  1756.  Smith,  the  contemporary 
historian,  admits  that  the  others  in  high  life  excused  themselves  from 
opposing  the  earl's  course,  while  it  was  understood  that  Mr.  Watts 
"  spoke  his  mind  in  favor  of  the  people."  So  was  it  with  Judge  Watts. 
He  inculcated,  as  a  principle  of  conduct  in  his  household,  that  "a gen- 
tleman may  treat  an  equal  according  to  the  exigencies  of  the  situation, 
but  nuist  treat  a  poor  man  or  social  inferior  with  respect  under  all 
circumstances.'' 

Judge  Watts,  Senior,  was  one  of  the  founders,  and  afterwards  presi- 
dent, of  the  New  York  Hospital,  with  very  extensive  powers  and  juris- 
diction, and  John  Watts,  Junior,  was  one  of  the  founders,  and  after- 


JOHX   WATTS,   Jl'NIOR. 


518 


HISTORY  OF  THE  BENCH  AND  BAR  OF  NEW  YORK 


wards  president,  of  the  New  York  City  Dispensary.  He  was  also  the 
founder  and  endower  of  the  Leake  and  Watts  Orplian  House,  diverting 
for  this  purpose  a  fortune  of  SI, 000,000  which  woukl  otherwise  have 
been  his  by  inheritance. 

Like  his  father,  Judge  Watts  married  into  the  de  Lancey  family, 
his  wife,  Jane,  being  tlie  daughter  of  Peter  de  Lancey,  "  of  the  Mills," 
Westchester  county,  New  York.  Her  mother,  Elizabeth,  was  the 
daughter  of  Governor  Cadwallader  Golden. 

Judge  Watts'  two  sons,  Robert  and  George,  were  officers  in  the 
service  of  the  United  States  during  the  war  of  1812.  The  last  men- 
tioned was  aide-de-camp  to  General  Winfield  Scott,  who  eulogized  him 
for  his  remarkable  courage  and  coolness  and  credited  him  with  having 
saved  his  own  life  from  a  treacherous  attack  by  Indians  in  the  British 
service  just  prior  to  the  battle  of  Chippewa.  His  sons  dying  early, 
without  issue,  Judge  Watts'  estate  was  mainly  divided  between  his  two 

grandsons,  Major  -  Gen- 
eral J.  Watts  de  Pey- 
ster,  son  of  his  youngest 
daughter,  "the  beautiful 
Mary  Justina  Watts," 
and  Frederic  de  Peyster, 
and  Major-General  Philip 
Kearny,  son  of  another 
daughter. 

The  notable  statue  of 
Honorable  John  Watts, 
Junior,  in  Trinity  church- 
yard, was  erected  by  his 
grandson.  General  de 
Peyster.  This  work,  with 
the  statue  in  Bowling  Green  of  another  ancestor,  Colonel  Abraham 
de  Peyster,  an  early  mayor  of  the  city  and  chief-justice  of  the  colony, 
and  acting  governor  in  1701,  and  both  the  gifts  to  the  city  of  General 
de  Peyster,  are  among  the  finest  of  the  statues  which  the  city 
boasts. 

Honorable  John  Watts,  Junior,  has  often  been  concisely  character- 
ized by  his  grandson,  General  de  Peyster,  as  vir  equanimitatis — two 
"  words  which  exactly  express  his  character,  his  firmness  of  bearing 
beneath  a  burden  of  affliction  and  suffering  which  led  those  acquainted 
with  the  extent  of  his  losses  and  griefs  to  style  him  a  '  Monument  of 
affliction.' "  So  clear-cut  was  his  analytical  habit  of  thought,  and  so 
pointed  and  laconic  his  mode  of  expression,  that  the  celebrated  Honor- 
able Samuel  B.  Ruggles  was  accustomed  to  declare  that  John  AVatts 
could  "  express  himself  more  to  the  point  on  a  page  of  note-paper  than 
could  most  men  on  a  sheet  of  foolscap." 

'  The  site  of  the  present  Field  or  WashinRton  building. 


KENNEDY   AND   WATTS  HOUi? 


1   AND  3  BROADWAY  J 


IIIsroKV    OF    I'lIK    1$K.\(  II    AMI    I!A  K    OI-'    NKW    VOKK  T)!*.) 

|KLLS,  JOHN  (borii  in  (!li<'iiy  Xiillcy,  Otsc^'o  coiiniy,  New 
York,  in  17T0;  died  in  liroolvlyn,  New  York,  ScptcmlH'i-  7, 
1S'2;{),  vv:iM  fj;r!i(hi!ift'(l  at  I'rinct'ton  in  177S,  si  tidied  law  iindrr 
Fiduard  (iiiswold,  and  in  ITlH  was  admitted  (o  the  l):ir.  !!<• 
took  a  prominent  ])art  in  tlie  discussions  in  tiie  prcissahont  the  nalional 
constitution, advocatin*;  fedeialist  i)rincii)les, and  became  intimate  witli 
Alexander  Hamilton.  In  this  connection  lie  sustained  a  leadin*^  part 
in  the  ])ublicati()n  of  the  Fcdcntlist.  Am()n<r  his  important  cases  at 
the  bar  were  tlie  Smith-Cheetham  libel  suit  and  the  case  of  Griswold 
xs.  Waddiiif^ton— the  latter  being  an  action  brought  after  the  war  of 
1812,  in  which  Mr.  AWdls  took  the  ground  that  the  war  effected  a  dis- 
solution of  the  partnership  of  the  Waddington  brothers,  one  of  whom 
was  a  resident  of  New  Y'ork  and  the  other  of  Liverjjool. 


IRNDELL,  JOHN  LANSING  (born  in  Albany,  New  York, 
Januarys,  17S5;  died  in  Hartford,  Connecticut,  December  I'J, 
1S(U),  received  his  legal  education  in  the  office  of  his  brother, 
Gerritt  AVendell,  and  was  admitted  to  the  bar  at  Albany. 
After  serving  as  a  jndge  of  Washington  county  he  was  appointed  re- 
porter of  the  Supreme  Conrt,  which  i)osition  he  held  for  a  long  period.  His 
reports  of  cases  in  the  Supreme  Court  comprise  twenty-six  volumes  and 
extend  from  1829  to  1842.  He  also  published  a  digest  of  Supreme 
Court  cases  (1836)  and  edited  editions  of  Blackstone's  Commentaries 
(1847)  and  Starkie's  "  Law  of  Slander  "  (1843). 


jHEATON,  HENRY  (born  in  Providence,  Rhode  Island,  No- 
vember 27,  1785  ;  died  in  Dorchester,  Massachusetts,  March 
11,  1848),  was  a  member  of  an  old  New  England  family.'  His 
legal  preceptor  was  Nathaniel  Searle,  and  after  his  admission 
to  the  bar  (1805)  he  rounded  out  his  professional  education  abroad. 
After  his  return  he  practiced  for  a  while  in  Providence,  but  removed  in 
1812  to  New  York  City.  During  the  war  of  1812-15  he  edited  t\\e  Na- 
tional Adcocate,  in  which  he  published  a  series  of  important  papers  on 
neutral  rights.  He  filled,  successively,  the  offices  of  division  judge- 
advocate  of  the  army  (1814),  justice  of  the  Marine  Court  of  New  York 
City  (1815-19),  and  reporter  of  the  Supreme  Court  of  the  United  States 
(1816-27).  As  reporter  of  the  United  States  Supreme  Court  his  name 
is  connected  in  an  enduring  manner  with  the  jurisprudence  of  the  coun- 
try. The  reports  published  by  him  in  that  capacity — tw^elve  volumes 
— are  models  of  conscientiousness  and  intelligence. 

During  his  service  as  reporter  he  was  a  delegate  to  the  state  con- 

1  Its  ancestor,  Reverend  Robert  Whcaton,  came   from  Wales  and  settled  in  Salem,   Slafsachusetts,  and  after- 
ward in  Rhode  Island. 


520  HISTORY    OF   THE   BENCH   AND    BAR   OF   NEAV  YORK 

stitiitional  convention  of  1^21,  a  member  of  the  assembly  (1823),  and  a 
commissioner,  with  Benjamin  F.  Butler  and  John  Duer,  to  revise  the 
statutes  of  the  state.  He  also  continued  his  legal  practice,  arguing 
various  important  cases.  He  was  associated  with  Daniel  Webster  in 
the  suit  brought  to  settle  the  limits  of  the  bankruptcy  legislation  of 
the  state  and  federal  governments. 

He  resigned  his  offices  as  Supreme  Court  reporter  and  state  re- 
viser to  accept  the  position  of  charge  (Vaffaires  to  Denmark  (1827-35). 
He  was  also  minister  resident  and  later  minister  plenipotentiary  to 
Prussia  (1885-46). 

Returning  to  the  United  States  he  was  the  recipient  of  high  hon- 
ors. He  was  appointed  lecturer  on  international  law  at  Harvard,  but 
in  consequence  of  ill-health  was  unable  to  accept  the  place. 

Mr.  Wheaton's  great  work,  "  Elements  of  International  Law,"  was 
first  published  at  Philadelphia  in  1836.  It  immediately  enjoyed  ac- 
ceptance as  an  eminent  authority  and  has  been  repeatedly  republished. 
His  other  writings  are  numerous  and  varied,  embracing  valuable  con- 
tributions to  different  phases  of  the  literature  of  the  law. 


HEELER,  WILLIAM  ALMON  (born  in  Malone,  Franklin 
county,  New  York,  June  30,  1819 ;  died  there,  June  4, 
1887),  was  a  student  at  the  University  of  Vermont,  but  did 
not  graduate.  Soon  after  his  admission  to  the  bar  (1845)  he 
became  United  States  district-attorney  of  Franklin  county.  He  early 
took  a  strong  interest  in  politics  as  a  whig,  and  joined  the  republican 
party  upon  its  organization.  He  served  in  tlie  assembly,  the  state 
senate  (being  its  president  ^ro  tempore,  1858-59),  and  congress  (18G9- 
77).  He  was  president  of  the  state  constitutional  convention  of  1867. 
He  was  nominated  for  vice-president  by  the  republican  party  in  1876 
and  took  his  seat  as  president  of  the  senate  in  March,  1877.  He  retired 
from  active  life  after  the  completion  of  his  term. 

As  a  lawyer  Mr.  Wheefer  was  a  man  of  recognized  ability,  but  a 
trouble  of  the  throat  compelled  him  to  give  up  his  active  practice  in 
1851, 


IHITTLESEY,  FREDERICK  (born  in  Washington,  Connecti- 
cut, June  12,  1799  ;  died  in  Rochester,  New  York,  September 
19,  1851),  was  a  Yale  graduate  (class  of  1818),  was  adndtted 
to  the  bar  in  1821  at  Utica,  removed  to  Rochester  in  1822, 
and  became  prominent  in  that  city,  serving  in  congress  (1831-35),  as 
vice-chancellor  of  the  8th  judicial  district  (1839-47),  and  as  judge  of  the 
state  Supreme  Court  (1847'-48).  Later  he  lectured  on  law  in  Genesee 
College. 


I:Y    01'     Till':    HKNCII     AM>    li.Vi:    OK    NKW    V( 


rj\ 


ILI.AKI),  .lOlIN  (horn  in  (JiillfonUC.'onnccticiit,  May  20, 1792; 
(lied  in  Saiato^a  Spiini^s,  New  York,  Au^n.st  ;U,  ISH'j),  was 
adiiiitlcd  to  tlic  bar  in  Salem,  \N'ashin_<^t()n  county,  New 
^'oI■k,  ill  isifT.  liavin<?  rt'(!eiv«'(l  a  collciciatc  education.  From 
1S;{()  to  184S  he  was  jud<>;e  and  vice-chancellor  of  the  4tli  circuit,  and  in 
1S54  he  became  a  nuMuber  of  the  Court  of  Appeals.  He  served  as  a 
commissioner,  by  the  api)ointmentof  President  Pierce,  to  inquire  as  to 
the  validity  of  Si)anish  and  ^fexican  claims  to  California  land-titles. 
He  was  elected  to  the  state  senate  in  1801,  and  in  that  body  rendered 
memorable  service  in  simplifyin<^  the  laws  relating  to  murder  and  the 
rights  of  married  women.  He  published  a  work  on  "  ?2quity  Juris- 
prudence "  (18r)5),  a  ''Treatise  on  Executors,  Administratois  and 
Guardians  "  (ISoO),  and  a  "  Treatise  on  Real  Estate  and  Conveyanc- 
ing "  (1861). 

He  ranks  among  the  distingnished  jurists  of  the  state,  both  as  a 
jndge  and  as  a  legal  writer. 


|ILLIAMS,  ELISHA  (born  in  Pomfret,  Connecticut,  Angnst  29, 
1773  ;  died  in  New  York  City,  June  29, 1833),  had  for  his  legal 
preceptors  Judge  Tapping  Reeve,  of  Litchfield,  Connecticut, 
and  Chief-Justice  Spencer,  of  Hudson,  New  Y^ork.  After  his 
admission  to  the  bar  (1793)  he  practiced  in  Spencertown  and  Hudson. 
He  was  prominent  in  the  state  constitutional  convention  of  1821.  He 
ranks  with  the  very  foremost  practitioners  of  the  first  quarter  of  the 
century,  and  was  an  orator  and  nisi  prius  advocate  of  surpassing 
powers.  He  founded  the  tow^n  of  Waterloo.  He  was  one  of  the  most 
influential  men  of  Columbia  county,  was  a  leader  of  the  federalists,  and 
was  repeatedly  elected  to  the  assembly  of  the  state. 


|00D,  GEORGE  (born  in  Chesterfield,  Burlington  county. 
New  Jersey,  in  January,  1789  ;  died  in  New^  Y^ork  City, 
March  17,  1860),  was  graduated  in  1808  at  Princeton,  studied 
law  with  Robert  Stockton,  was  admitted  to  the  bar  in  1812, 
began  practice  in  New  Brunswick,  New  Jersey,  and  advanced  with 
great  rapidity  to  a  foremost  place  in  the  profession.  He  removed  to 
New  Y^ork  City  in  1831,  and  until  the  end  of  his  career  was  counted 
among  the  ablest  jurists  of  the  metropolitan  bar.  He  was  frequently 
retained  in  cases  involving  constitutional  questions.  His  name  is 
especially  connected  with  the  development  of  settled  doctrines  of  juris- 
prudence in  matters  related  to  charitable  devises. 


522 


HISTORY  OF  THE  BENCH  AND  BAR  OF  NEW  YORK 


lOODRUFF,  LEWIS  B.  (born  in  Litchfield,  Connecticut,  June 
19,  1809  ;  died  there,  September  10,  1ST5),  was  graduated 
with  honors  at  Yale  in  1830,  and  studied  law  under  Judge 
Gould  in  the  school  at  Litchfield,  being  admitted  to  the  bar 
of  Connecticut  in  1832.  Soon  afterward  he  went  to  Xew  York  City 
and  formed  an  association  with  Honorable  Willis  Hall,  which  lasted 
until  1836.  Later  he  was  in  partnership  with  George  Wood,  and  also 
Avith  Richard  Goodman.  In  1849  he  was  elected  to  the  bench  of  Court 
of  Common  Pleas,  as  successor  to  Judge  Ulshoeflfer.  He  served  in  that 
ofiice  until  1855.  From  1856  to  1861  he  was  associate- justice  of  the 
Superior  Court.  He  then  retired  to  private  practice  in  association  with 
Honorable  Charles  F.  Sanford.  From  January,  1868,  until  the  end  of 
1869  he  was  a  member  of  the  Court  of  Appeals,  b}^  gubernatorial 
appointment,  and  from  the  latter  date  until  his  death  he  was  judge  of 
the  Circuit  Court  of  the  United  States  for  the  2d  judicial  circuit,  em- 
bracing the  states  of  New  York,  Connecticut  and  Vermont. 

Both  as  a  counsellor  and  as  a  judge  he  was  characterized  by  great 
learning,  remarkable  power  of  analysis  and  deep  discernment.  His  de- 
cisions in  admiralty  and  patent  suits  are  particularly  able  and  valuable. 


OODWORTH,  JOHN  (born  in  Schodack,  New  York,  Novem- 
ber 12,  1768  ;  died  in  Albany,  New  York,  June  1,  1858),  was 
one  of  John  Lansing's  law  pupils,  and  in  1791  was  admitted 
to  the  bar.  In  1813  he  published,  in  collaboration  with 
William  P.  Van  Ness,  a  revision  of  the  laws  of  New  York.  He  served 
in  the  assembly  and  senate,  and  was  surrogate  of  Rensselaer  county, 
attorney-general  (1804-8),  and  Supreme  Court  justice  (1819-28). 


ORDEN,  ALVAH  (born  in  Milton,  Saratoga  county.  New 
York,  June  11,  1798  ;  died  in  1856),  was  educated  at  the  Mil- 
ton Academy,  and  then  began  the  study  of  medicine,  which 
he  abandoned  to  engage  in  mercantile  pursuits.  He  opened 
a  large  general  store  in  Auburn,  and  enjoyed  much  success,  but  misfor- 
tunes swept  away  his  entire  possessions  at  the  age  of  thirty-four.  He 
then  decided  to  study  law,  and  his  abilities  enabled  him  to  promptly 
take  a  very  prominent  place  at  the  bar.  He  established,  with  Mark  H. 
Sibley,  the  firm  of  Worden  &  Sibley.  He  was  counsel  in  many  highly 
important  cases — notably  the  celebrated  one  of  Griffith  vs.  Reed,  in 
which  he  succeeded  over  Marcus  T.  Reynolds ;  obtaining  a  decision 
which,  although  frequent  efforts  have  been  made  to  remove  it,  still 
remains  law.  He  was  one  of  the  principal  members  of  the  consti- 
tutional convention  of  1846,  and  was  appointed  one  of  the  commission- 
ers of  the  code,  with  Albert  L.  Robertson  and  Seth  C.  Hawley,  in  1847. 
He  declined  a  reappointment  in  1849.     Resuming  his  practice,  he  was 


iiisioiiv  OK   riii':  itKNcii  AM)  itAi:  ok  nkw  vokk  ^i'2'.i 

occupied,  throii^liout  tlie  reinaindcr  of  liis  Mclivf  life,  wiili  litiLr:ili<>iis 
iuvolviui;-  i^vout  inlcrcsfs.  He  j);irlicii):it('(l  siiccrssriill y  in  this  pnioil 
iu  lilt'  ni»'iii()r:il)lt'  case  of  I^'anuer.s'  Loan  luid  Trust  Coiui):iuy  /'v.  Cairoll. 


SILAS  (born  in  Amherst,  Massacliusetts,  May  24, 
died  in  Canton,  Saint  Lawrence  county,  New  York, 

27,  1S47),  was  bi-ou,i;lit  np  on  a  farm,  was  gradtuited 
at  Middlebury  College  in  IHIH,  and  engafjed  in  the  jjractice  of 
the  law  at  Canton.  His  career  at  the  bar  was  soon  interrupted  by  his 
energetic  participation  in  politics,  but  meantime  he  had  become  i)rom- 
inent  among  lawyers  of  that  section  of  the  state,  having  been  api)ointed 
surrogate  of  Saint  Lawrence  county.  He  began  his  ])ublic,  life  as  an 
intense  partisan  of  the  democratic  party,  and  to  that  faith  he  adhered 
until  his  death.  After  serving  in  the  state  legislature  and  in  the 
national  house  of  rei)resentatives,  he  was  elected  (1829)  comptroller  of 
the  state,  and  in  1833  he  succeeded  William  L.  Marcy  in  the  senate  of 
the  United  States.  He  remained  in  that  office  until  December,  1844, 
and  from  the  latter  date  until  1847  he  was  governor  of  the  state.  He 
then  retired  to  rural  life. 


ATES,  JOHN  VAN  NESS  (born  in  Albany,  New  York, 
December  18,  1779  ;  died  there,  January  10,  1839),  a  grand- 
son of  Judge  Robert  Y^ates  (q.  v.),  was  a  well-known  prac- 
titioner of  Albany.  Early  in  his  career  he  gained  much 
notoriety  by  his  controversy  with  Chancellor  Lansing,  who  had  adjudged 
him  guilty  of  contempt  for  failing  to  observe  the  formalities  of  the 
Court  of  Chancery.  (See  the  sketch  of  John  Lansing.)  He  sensed  as 
recorder  of  Albany  for  a  number  of  years,  and  as  secretary  of  state 
(1818-26).  and  was  appointed  by  the  legislature  to  add  notes  and  refer- 
ences to  the  revised  statutes.  Among  his  published  works  are  "  Select 
Cases  Adjudged  in  the  Courts  of  the  State  of  New  York,  Containing 
the  Case  of  John  V.  N.  Yates  and  the  Case  of  the  Journeymen  Cord- 
wainers"  (1811),  "A  Collection  of  Pleadings  and  Practical  Precedents, 
with  Notes  thereon"  (2d.  ed.,  1837),  and,  in  conjunction  with  John  L. 
Tillinghast,  a  "  Treatise  on  the  Principles  and  Practice,  Process,  Plead- 
ings and  Entries  in  Cases  of  Writs  of  Error  "  (1840). 


ATES,  JOSEPH  CHRISTOPHER  (born  in  Schenectady,  New 
York,  November  9,  1768  ;  died  there,  March  19,  1837),  a  son 
of  Christopher  Yates,  who  held  the  rank  of  quartennaster- 
general  in  the  Revolution,  was  one  of  the  prominent  state 
lawyers  of  his  time,  practicing  at  Schenectady.  He  was  mayor  of  that 
city  (1798-1808),  judge  of  the  state  Supreme  Court,  and  governor 
(1823-25).  He  was  one  of  the  founders  of  Union  College.  The  county 
of  Yates  was  named  for  him. 


524 


HISTORY   OF   THE   BENCH   AND   BAR   OF   NP:W   YOKK 


ATES,  ROBERT  (born  in  Schenectady,  New  York,  March  IT, 
1738  ;  died  in  Albany,  Xew  York,  September  9,  1801),  was  a 
legal  pupil  of  William  Livingston,  and  took  a  leading  place 
at  the  bar  of  Albany,  being  admitted  in  1760,  He  was  dis-, 
tinguished  in  public  life,  serving  in  the  provincial  congresses  of  'New 
York  and  having  a  hand  in  the  drafting  of  the  constitution  of  1777. 
He  was  a  judge  of  the  state  Supreme  Court  from  1777  to  1798,  and  dur- 
ing the  last  eight  years  of  his  service  was  its  chief-Justice.  He  was  a 
delegate  to  the  national  constitutional  convention  and  was  a  commis- 
sioner to  determine  questions  of  territorial  ownership  with  the  states 
of  Massachusetts,  Connecticut  and  Vermont. 

Peter  W.  Yates,  a  member  of  the  continental  congress  and  a  con- 
spicuous Albany  lawyer,  was  his  relative. 


OUNG,  JOHN  (born  in  Chelsea,  Vermont,  June  12,1802;  died 

in  New  York  City,  April  23, 1852), 

was  the  son  of  an  innkeeper,  and 

was  largely  self-educated.  At  the 
age  of  twenty-one  he  entered  the  law  office 
of  A.  A.  Bennett  at  East  Avon,  New  York. 
Removing  to  Geneseo,  he  completed  his 
studies  under  Ambrose  Bennett,  and  in  1827 
was  admitted  to  the  bar.  He  quickly  se- 
cured a  lucrative  practice,  ranking  with  the 
best  jury  lawyers  of  the  times.  Entering 
politics,  he  was  a  firm  supporter  of  Andrew 
Jackson,  then  an  anti-masonic  leader,  and 
finally  a  whig.  He  served  several  terms  in 
the  state  legislature  and  in  congress.  In 
the  legislature  he  was  instrumental  in  the 
passage  of  the  measure  under  which  the 
constitutional  convention  of  1846  was  held. 
He  was  elected  governor  in  1846,  occupying  the  oflBce  from  1847  to  1849. 


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